false
0001840572
0001840572
2024-08-23
2024-08-23
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM 8-K
____________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of
Report (date of earliest event reported): August 23, 2024
____________________________
BOWLERO CORP.
(Exact name of
registrant as specified in its charter)
____________________________
| Delaware |
001-40142 |
98-1632024 |
| |
|
|
(State or other jurisdiction of
incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification
Number) |
| |
7313 Bell Creek Road
Mechanicsville, Virginia 23111 |
|
(Address of principal executive offices and zip
code)
(804) 417-2000
(Registrant's telephone number, including area
code)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
|
Title
of each class |
Trading
Symbol |
Name
of each exchange on which registered |
| Class A common stock, par value $0.0001 |
BOWL |
The New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 12b-2 of the Exchange Act.
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement.
On August 23, 2024, Bowlero Corp. (the “Company”)
entered into an Eleventh Amendment (the “Eleventh Amendment”) to the First Lien Credit Agreement, dated as of July
3, 2017, by and among the Company, Kingpin Intermediate Holdings LLC, a direct subsidiary of the Company, as borrower, the other guarantors
party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto (as amended, restated,
amended and restated, supplemented or otherwise modified and in effect prior to the date hereof, the “Existing Credit Agreement”;
the Existing Credit Agreement, as amended by the Eleventh Amendment, the “Amended Credit Agreement”). Capitalized terms
not defined herein are as defined in the Amended Credit Agreement.
The Eleventh Amendment provides for a $50 million increase (the “Incremental
Revolving Commitments”) of the total revolving commitments under the Existing Credit Agreement to an aggregate amount of $335 million.
The Incremental Revolving Commitments have the same terms as the existing revolving commitments under the Existing Credit Agreement, including
interest rate and maturity date. The Incremental Revolving Commitment is undrawn as of the Eleventh Amendment Effective Date.
The description above is a summary and is qualified in its entirety
by the full text of the Eleventh Amendment and the Amended Credit Agreement, which are filed as Exhibit 10.1 to this Current Report on
Form 8-K and are incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth above under Item 1.01 of this Current Report
on Form 8-K is incorporated by reference into this Item 2.03.
Item 9.01 Financial Statement and Exhibits.
(d) Exhibits.
|
Exhibit
No. |
Description |
| 10.1 |
Eleventh Amendment, dated August 23, 2024, to the First Lien Credit Agreement, dated as of July 3, 2017, by and among Bowlero Corp., Kingpin Intermediate Holdings LLC, as borrower, the other guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto. |
| 104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
BOWLERO CORP. |
| |
|
| |
|
| Date: August 23, 2024 |
By: |
/s/ Robert M. Lavan |
| |
Name: |
Robert M. Lavan |
| |
Title: |
Chief Financial Officer |
Exhibit 10.01
ELEVENTH AMENDMENT (this
“Amendment”), dated as of August 23, 2024, to the First Lien Credit Agreement dated as of July 3, 2017 (as amended
as of March 28, 2018, July 5, 2018, November 20, 2019, June 10, 2020, September 25, 2020, December 15, 2021, December 17, 2021, February
8, 2023, June 13, 2023 and June 18, 2024, and as further amended, restated, supplemented or otherwise modified from time to time prior
to the date hereof, the “Existing Credit Agreement”) among Kingpin Intermediate Holdings LLC, as Parent Borrower (the
“Borrower”), Bowlero Corp. (“Holdings”), the financial institutions party thereto as Lenders, JPMorgan
Chase Bank, N.A. (“JPM”), as Administrative Agent and the other parties thereto.
WHEREAS, in accordance with
the provisions of Section 2.22 and Section 9.02 of the Existing Credit Agreement, the Borrower has requested that each financial institution
identified on the signature pages hereto as an “Amendment No. 11 Incremental Revolving Lender” (each, an “Amendment
No. 11 Incremental Revolving Lender”) extend incremental credit in the form of Additional Revolving Credit Commitments under
and as defined in the Existing Credit Agreement in an aggregate committed principal amount of $50,000,000 (the “Amendment No.
11 Incremental Revolving Commitments”) in order to increase the Total Revolving Credit Commitments and the Amendment No. 6 Replacement
and Incremental Revolving Credit Commitments under the Existing Credit Agreement immediately prior to the effectiveness of this Amendment;
WHEREAS, the Administrative
Agent and the Borrower have jointly identified a necessary and desirable technical change in Section 9.01 of the Existing Credit Agreement
and, in accordance with the provisions of Section 9.02(d) of the Existing Credit Agreement, the Administrative Agent and the Borrower
are permitted to amend such section solely to address such matter as reasonably determined by them acting jointly without the input or
consent of any Lender; and
WHEREAS, in connection with
the foregoing, (i) each Amendment No. 11 Incremental Revolving Lender who is not party to the Credit Agreement has agreed to become a
Revolving Lender for all purposes in connection with this Amendment and the Credit Agreement, as amended hereby, with all rights and obligations
of a “Revolving Lender” under and as defined in the Credit Agreement, as amended hereby and (ii) the Administrative Agent,
Holdings, the Borrower, the Issuing Bank, the Swingline Lender and the Amendment No. 11 Incremental Revolving Lenders desire to memorialize
the terms of this Amendment by amending the Existing Credit Agreement in accordance with Section 9.02 thereof, such amendments to become
effective immediately on the Eleventh Amendment Effective Date (as hereinafter defined).
NOW, THEREFORE, in consideration
of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the
Amended Credit Agreement.
SECTION
2. Amendment No. 11 Incremental Revolving Commitments.
(a) Subject
to the terms and conditions set forth herein, each of the Amendment No. 11 Incremental Revolving Lenders, severally and not jointly, agrees
to provide its Amendment No. 11 Incremental Revolving Commitments on the Eleventh Amendment Effective Date as an increase to the existing
Amendment No. 6 Replacement and Incremental Revolving Facility under the Existing Credit Agreement and to make Amendment No. 6 Replacement
and Incremental Revolving Loans to the Borrower in Dollars at any time and from time to time on and after the Eleventh Amendment Effective
Date on
account thereof. Each party
hereto acknowledges and agrees that, effective as of the Eleventh Amendment Effective Date, (i)(1) each Amendment No. 11 Incremental Revolving
Lender shall be deemed to become an “Amendment No. 6 Replacement and Incremental Revolving Lender”, (2) the existing Amendment
No. 6 Replacement and Incremental Revolving Facility shall be increased by the amount of Amendment No. 11 Incremental Revolving Commitments,
(3) all Amendment No. 11 Incremental Revolving Commitments shall be deemed to be “Amendment No. 6 Replacement and Incremental Revolving
Credit Commitments”, (4) all loans made on account of the Amendment No. 11 Incremental Revolving Commitments shall be deemed to
be “Amendment No. 6 Replacement and Incremental Revolving Loans” and (5) this Amendment shall be deemed to be an “Incremental
Facility Amendment”, in each case of clause (1) through (5), for all purposes in connection with this Amendment, the Amended
Credit Agreement and the other Loan Documents and (ii) the Revolving Credit Commitments of each Revolving Lender shall be as set forth
on Schedule 1.01(a) of the Amended Credit Agreement and the Applicable Percentage of each Revolving Lender shall be based on the Revolving
Credit Commitments set forth on Schedule 1.01(a) of the Amended Credit Agreement.
(b) The
Amendment No. 11 Incremental Revolving Commitments and the Revolving Loans made from time to time on account thereof shall be of the same
Class as the existing Amendment No. 6 Replacement and Incremental Revolving Credit Commitments and the Amendment No. 6 Replacement and
Incremental Revolving Loans, respectively, under the Amended Credit Agreement, with the terms and provisions set forth herein and in the
Amended Credit Agreement.
(c) On
the Eleventh Amendment Effective Date, subject to the terms and conditions set forth herein, to the extent any Revolving Loan, LC Disbursement
or Swingline Loan is outstanding on such date, each Revolving Lender immediately prior to the increase of the Amendment No. 6 Replacement
and Incremental Revolving Facility (each, an “Assignor”) shall hereby be deemed to irrevocably sell and assign, at
par, to each Amendment No. 11 Incremental Revolving Lender (each, an “Assignee”), and each Assignee shall hereby be
deemed to irrevocably purchase and assume from such Assignor, subject to and in accordance with this Amendment and the Existing Credit
Agreement, as of the Eleventh Amendment Effective Date, the Assigned Interests (as defined below). “Assigned Interest”
means a portion of such respective Assignors’ rights and obligations in their respective capacities as Revolving Lenders under the
Existing Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the Revolving Credit
Commitments of the respective Assignors to the extent being assigned under this Amendment, such that after giving effect to this Amendment,
all of the Revolving Lenders’ (including the Amendment No. 11 Incremental Revolving Lenders) (A) participations under the Amended
Credit Agreement in Letters of Credit, (B) participations in Swingline Loans and (C) participations in outstanding borrowings of Revolving
Loans are, in each case, held and shared on a pro rata basis on the basis of the their respective Amendment No. 6 Replacement and
Incremental Revolving Credit Commitments (after giving effect to the increase of Amendment No. 11 Incremental Revolving Commitments pursuant
to this Amendment).
(d) On
the Eleventh Amendment Effective Date, subject to the terms and conditions set forth herein, (x) each Assignee purchasing and assuming
Assigned Interests pursuant to paragraph (c) above shall be deemed to have paid the purchase price for such Assigned Interests (equal
to the principal amount of such outstanding Revolving Loan, LC Disbursement or Swingline Loan with respect to such Assigned Interest,
plus accrued and unpaid interest to but excluding the Eleventh Amendment Effective Date) by wire transfer of immediately available funds
to the Administrative Agent not later than 4:00 p.m. (New York City time) and (y) the Administrative Agent shall pay to each of the
Assignors, out of the amounts received by the Administrative Agent pursuant to clause (x) above, the purchase price for the Assigned Interests
assigned by such Assignor pursuant hereto by wire transfer of immediately available funds to the account designated by such Assignor to
the Administrative Agent not later than 5:00 p.m. (New York City time) on the Eleventh Amendment Effective Date.
SECTION
3. Amendments. In accordance with Section 2.22 and Section 9.02 of the Existing Credit Agreement and effective as of
the Eleventh Amendment Effective Date, the Existing Credit Agreement is hereby amended to (a) delete the stricken text (indicated textually
in the same manner as the following example: stricken text) and to add the double-underlined
text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the conformed copy of the Amended Credit Agreement attached as Annex A hereto and (b) replace Schedule
1.01(a) thereto in its entirety with Annex B hereto (the Existing Credit Agreement as so amended, the “Amended Credit
Agreement”).
SECTION
4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Holdings and the
Borrower each represents and warrants solely to the other parties hereto on the Eleventh Amendment Effective Date that:
(a) (i)
the execution, delivery and performance by such Loan Party of this Amendment (and the Amended Credit Agreement) is within such Loan Party’s
corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational action of each
such Loan Party; and (ii) this Amendment has been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation
of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations; and
(b) the
execution and delivery of this Amendment (and the Amended Credit Agreement) by such Loan Party and the performance by such Loan Party
thereof (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority,
except (A) such as have been obtained or made and are in full force and effect (except to the extent not required to be obtained or made
pursuant to the Collateral and Guarantee Requirement), (B) in connection with the Perfection Requirements or (C) such consents, approvals,
registrations, filings, or other actions the failure to obtain or make which would not be reasonably expected to have a Material Adverse
Effect, (ii) will not violate any (A) of such Loan Party’s Organizational Documents or (B) Requirements of Law applicable to such
Loan Party which, in the case of this clause (ii), would reasonably be expected to have a Material Adverse Effect, and (iii) will not
violate or result in a default under (A) the Existing Credit Agreement or (B) any other material Contractual Obligation in respect of
Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is a party which, in the case
of this clause (B), would reasonably be expected to result in a Material Adverse Effect.
SECTION
5. Eleventh Amendment Effective Date. This Amendment shall become effective as
of the first date (the “Eleventh Amendment Effective Date”) on which each of the following conditions shall have been
satisfied (or waived by the Administrative Agent):
(a) the
Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower, the Administrative
Agent, the Issuing Bank, the Swingline Lender and each Amendment No. 11 Incremental Revolving Lender;
(b) no
Event of Default under Section 7.01(a), (f) or (g) of the Credit Agreement shall exist immediately prior to or immediately after giving
effect to the effectiveness of this Amendment;
(c) the
Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each of the Borrower and Holdings,
in substantially the form delivered on the Closing Date, (i) certifying that the articles of formation (or equivalent document) of such
Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the operating agreement
(or equivalent document) of such Loan Party, either (x) has not been amended since
the
prior date of delivery or (y) is attached as an exhibit to such certificate and that such documents or agreements have not been amended
(except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified
as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii)
certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving
the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer
of such Loan Party as of the Eleventh Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying
as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this
Amendment and (iv) attaching the good standing certificates described in clause (e) of this Section 5;
(d) the
Administrative Agent (or its counsel) shall have received, on behalf of itself and the Amendment No. 11 Incremental Revolving Lenders
on the Eleventh Amendment Effective Date, a customary written opinion of Davis Polk & Wardwell LLP, in its capacity as special New
York counsel for Holdings, the Borrower and certain of the Subsidiary Guarantors;
(e) the
Administrative Agent (or its counsel) shall have received a certificate of good standing (to the extent such concept exists in the relevant
jurisdiction) with respect to the Borrower and Holdings certified as of a recent date by the appropriate Governmental Authority of the
state of formation;
(f) the
Administrative Agent (or its counsel) shall have received all documentation and other information,
at least two Business Days prior to the Eleventh Amendment Effective Date, required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested
no less than ten Business Days prior to the Eleventh Amendment Effective Date); and
(g) the
representations and warranties set forth in Article 3 of the Amended Credit Agreement shall be true and correct in all material respects
on and as of the Eleventh Amendment Effective Date with the same effect as though such representations and warranties had been made on
the Eleventh Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given
date or period, it shall be true and correct in all material respects as of such date or for such period.
By
executing this Amendment, the Amendment No. 11 Incremental Revolving Lenders and the Administrative Agent shall be deemed to have consented
to, approved or accepted, or be satisfied with, or have waived, all conditions hereto and to the Eleventh Amendment Effective Date. The
Administrative Agent shall post a notice of effectiveness and occurrence of the Eleventh Amendment Effective Date, which shall be conclusive.
The Administrative Agent, the Issuing Bank, the Swingline Lender and the Amendment No. 11 Incremental Revolving Lenders acknowledge
and agree that the Eleventh Amendment Effective Date is August 23, 2024.
SECTION
6. Effect of Amendment.
(a) Except
as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders or Agents under the Existing Credit Agreement or any other Loan Document, and shall not
alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing
Credit Agreement or any other provision of the Existing Credit Agreement or of any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent
to, or a waiver, amendment,
modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document
in similar or different circumstances.
(b) From
and after the Eleventh Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any other
Loan Document, shall be deemed a reference to the Amended Credit Agreement and (ii) each reference in any Loan Document to the “Revolving
Lenders”, “Revolving Loans”, “Revolving Credit Commitments” or “Revolving Facility” shall be
deemed to include the Amendment No. 11 Incremental Revolving Lenders and Amendment No. 11 Incremental Revolving Commitments, as applicable.
(c) This
Amendment shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents
and shall be deemed to be an “Incremental Facility Amendment” as defined in the Amended Credit Agreement.
(d) Each
party hereto acknowledges that this Amendment constitutes all notices or requests required under Section 2.22 and/or Section 9.02 of the
Existing Credit Agreement.
(e) This
Amendment shall not constitute a novation of the Existing Credit Agreement or any other Loan Document.
SECTION
7. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket
expenses incurred by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of
Paul Hastings, LLP, counsel for the Administrative Agent.
SECTION
8. Amendments; Severability. (a) Once effective, this Amendment may not be amended nor may any provision hereof be waived
except pursuant to Section 9.02 of the Amended Credit Agreement or as otherwise agreed by the Borrower, the Administrative Agent and the
Amendment No. 11 Incremental Revolving Lenders (without the need for the consent of the Required Lenders or any other Lender).
(b) If
any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining
provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
9. Ratification and Reaffirmation. Each of Holdings and the Borrower hereby ratifies and reaffirms, on behalf of itself
and each other Subsidiary Guarantor, that: (a) each Loan Party’s Obligations in respect of the Existing Credit Agreement and each
of the other Loan Documents to which it is a party and all of the covenants, duties, indebtedness and liabilities under the Existing Credit
Agreement and the other Loan Documents to which it is a party, (b) each Loan Party’s prior grant and the validity of the Liens granted
by it pursuant to the Collateral Documents, with all such Liens continuing in full force and effect after giving effect to this Amendment
and (c) the Liens and security interests created in favor of the Administrative Agent for the benefit of the Secured Parties (including
the Amendment No. 11 Incremental Revolving Lenders) pursuant to each Collateral Document; which Liens shall continue to secure the Secured
Obligations (as increased hereby), in each case, on and subject to the terms and conditions set forth in the Amended Credit Agreement
and the other Loan Documents.
SECTION
10. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections
9.10 and 9.11 of the Existing Credit Agreement, as amended by this Amendment, are incorporated herein by reference, mutatis mutandis.
SECTION
11. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation
of this Amendment.
SECTION
12. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an
executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this
Amendment, and the words “execution,” “execute”, “signed,” “signature,” and words of like
import in or related to this Amendment shall be deemed to include electronic signatures, the electronic matching of assignment terms and
contract formations on electronic platforms, or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the
New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION
13. No Recourse. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Existing Credit
Agreement, as amended hereby, in no event will any Investor or any of their Affiliates (other than the Loan Parties) have any liability
with respect to obligations under the Credit Agreement, as amended hereby, or any other Loan Documents and/or any transaction that is
expressly permitted (or not prohibited by) the terms of the Loan Documents, as amended hereby.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
| |
KINGPIN INTERMEDIATE HOLDINGS LLC, as Borrower |
| |
|
| |
|
| |
By: |
/s/ Robert M. Lavan |
| |
|
Name: Robert M. Lavan
Title: Chief Financial Officer
|
| |
BOWLERO CORP., as Holdings |
| |
|
| |
|
| |
By: |
/s/ Robert M. Lavan |
| |
|
Name: Robert M. Lavan
Title: Chief Financial Officer
|
| |
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Swingline Lender and Issuing Bank |
| |
|
| |
|
| |
By: |
/s/ Inderjeet Aneja |
| |
|
Name: Inderjeet Aneja
Title: Executive Director
|
| |
TRUIST BANK,
as an Amendment No. 11 Incremental Revolving Lender |
| |
|
| |
|
| |
By: |
/s/ Tesha Winslow |
| |
|
Name: Tesha Winslow
Title: Director
|
ANNEX A
Adjusted marked version reflecting changes
made pursuant to the TenthEleventh
Amendment.
Added text shown underscored;
deleted text shown strikethrough.
EXECUTION VERSION
FIRST
LIEN CREDIT AGREEMENT
Dated as of July
3, 2017
(as amended as of
March 28, 2018, July 5, 2018, November 20, 2019, June 10, 2020, September 25, 2020, December 15, 2021, December 17, 2021, February 8,
2023, June 13, 2023 and,
June 18, 2024 and August 23, 2024)
among
KINGPIN
INTERMEDIATE HOLDINGS LLC,
as the Parent Borrower,
BOWLERO
CORP.,
as Holdings,
THE
SUBSIDIARIES OF THE PARENT BORROWER PARTY HERETO,
as Borrowers
THE FINANCIAL INSTITUTIONS
PARTY HERETO,
as Lenders,
JPMORGAN CHASE BANK,
N.A.,
as Administrative
Agent, Swingline Lender and an Issuing Bank,
and
JPMORGAN CHASE BANK,
N.A.,
CREDIT SUISSE SECURITIES
(USA) LLC and
GOLDMAN
SACHS BANK USA,
as Joint Lead Arrangers
and Joint Bookrunners
TABLE OF CONTENTS
Page
| |
Section 1.01. |
Defined Terms |
4 |
| |
Section 1.02. |
Classification of Loans and Borrowings |
88 |
| |
Section 1.03. |
Terms Generally |
88 |
| |
Section 1.04. |
Accounting Terms; GAAP |
89 |
| |
Section 1.05. |
Effectuation of Transactions |
93 |
| |
Section 1.06. |
Timing of Payment and Performance |
93 |
| |
Section 1.07. |
Times of Day |
93 |
| |
Section 1.08. |
Currency Equivalents Generally |
93 |
| |
Section 1.09. |
Cashless Rollovers |
94 |
| |
Section 1.10. |
Alternative Currencies |
94 |
| |
Section 1.11. |
Benchmark Replacement Setting |
95 |
| |
Section 1.12. |
Additional Borrowers; Parent Borrower as Representative |
97 |
| |
Section 2.01. |
Commitments |
97 |
| |
Section 2.02. |
Loans and Borrowings |
99 |
| |
Section 2.03. |
Requests for Borrowings |
99100 |
| |
Section 2.04. |
Swingline Loans |
100101 |
| |
Section 2.05. |
Letters of Credit |
102 |
| |
Section 2.06. |
[Reserved] |
107 |
| |
Section 2.07. |
Funding of Borrowings |
107 |
| |
Section 2.08. |
Type; Interest Elections |
108 |
| |
Section 2.09. |
Termination and Reduction of Commitments |
109 |
| |
Section 2.10. |
Repayment of Loans; Evidence of Debt |
110 |
| |
Section 2.11. |
Prepayment of Loans |
111 |
| |
Section 2.12. |
Fees |
119 |
| |
Section 2.13. |
Interest |
120 |
| |
Section 2.14. |
Alternate Rate of Interest |
121 |
| |
Section 2.15. |
Increased Costs |
122 |
| |
Section 2.16. |
[Reserved] |
123 |
| |
Section 2.17. |
Taxes |
123 |
| |
Section 2.18. |
Payments Generally; Allocation of Proceeds; Sharing of Payments |
127 |
| |
Section 2.19. |
Mitigation Obligations; Replacement of Lenders |
129 |
| |
Section 2.20. |
Illegality |
130 |
| |
Section 2.21. |
Defaulting Lenders |
131 |
| |
Section 2.22. |
Incremental Credit Extensions |
133 |
| |
Section 2.23. |
Extensions of Loans and Revolving Credit Commitments |
138 |
| Article 3 representations and warranties |
141 |
| |
Section 3.01. |
Organization; Powers |
141 |
| |
Section 3.02. |
Authorization; Enforceability |
141 |
| |
Section 3.03. |
Governmental Approvals; No Conflicts |
141 |
| |
Section 3.04. |
Financial Condition; No Material Adverse Effect |
141 |
| |
Section 3.05. |
Properties |
142 |
| |
Section 3.06. |
Litigation and Environmental Matters |
142 |
| |
Section 3.07. |
Compliance with Laws |
143 |
| |
Section 3.08. |
Investment Company Status |
143 |
| |
Section 3.09. |
Taxes |
143 |
| |
Section 3.10. |
ERISA |
143 |
| |
Section 3.11. |
Disclosure |
143 |
| |
Section 3.12. |
Solvency |
144 |
| |
Section 3.13. |
Capitalization and Subsidiaries |
144 |
| |
Section 3.14. |
Security Interest in Collateral |
144 |
| |
Section 3.15. |
Labor Disputes |
144 |
| |
Section 3.16. |
Federal Reserve Regulations |
145 |
| |
Section 3.17. |
Sanctions and Anti-Corruption Laws |
145 |
| |
Section 4.01. |
Closing Date |
145 |
| |
Section 4.02. |
Each Credit Extension |
149 |
| Article 5 affirmative covenants |
149 |
| |
Section 5.01. |
Financial Statements and Other Reports |
150 |
| |
Section 5.02. |
Existence |
152 |
| |
Section 5.03. |
Payment of Taxes |
153 |
| |
Section 5.04. |
Maintenance of Properties |
153 |
| |
Section 5.05. |
Insurance |
153 |
| |
Section 5.06. |
Inspections |
154 |
| |
Section 5.07. |
Maintenance of Book and Records |
154 |
| |
Section 5.08. |
Compliance with Laws |
154 |
| |
Section 5.09. |
Hazardous Materials Activity |
154 |
| |
Section 5.10. |
Designation of Subsidiaries |
155 |
| |
Section 5.11. |
Use of Proceeds |
156 |
| |
Section 5.12. |
Covenant to Guarantee Obligations and Give Security |
157 |
| |
Section 5.13. |
Maintenance of Ratings |
159 |
| |
Section 5.14. |
Maintenance of Fiscal Year |
159 |
| |
Section 5.15. |
Further Assurances |
159 |
| |
Section 5.16. |
Conduct of Business |
159 |
| |
Section 5.17. |
Annual Lender Call |
159 |
| |
Section 5.18. |
Post-Closing Actions |
160 |
| |
Section 5.19. |
Transactions with Affiliates |
160 |
| Article 6 negative covenants |
162 |
| |
Section 6.01. |
Indebtedness |
162 |
| |
Section 6.02. |
Liens |
169 |
| |
Section 6.03. |
No Further Negative Pledges |
174 |
| |
Section 6.04. |
Restricted Payments; Certain Payments of Indebtedness |
176 |
| |
Section 6.05. |
[Reserved] |
183 |
| |
Section 6.06. |
Investments |
183 |
| |
Section 6.07. |
Fundamental Changes; Disposition of Assets |
188 |
| |
Section 6.08. |
Sale and Lease-Back Transactions |
193 |
| |
Section 6.09. |
[Reserved] |
194 |
| |
Section 6.10. |
[Reserved] |
194 |
| |
Section 6.11. |
[Reserved] |
194 |
| |
Section 6.12. |
Amendments of or Waivers with Respect to Restricted Debt |
194 |
| |
Section 6.13. |
[Reserved] |
194 |
| |
Section 6.14. |
Permitted Activities of Holdings |
194 |
| |
Section 6.15. |
Financial Covenant |
196 |
| Article 7 events of default |
197 |
| |
Section 7.01. |
Events of Default |
197 |
| Article 8 the administrative agent |
201 |
| |
Section 8.01. |
General |
201 |
| |
Section 8.02. |
Payment |
208 |
| Article 9 miscellaneous |
210 |
| |
Section 9.01. |
Notices |
210 |
| |
Section 9.02. |
Waivers; Amendments |
211 |
| |
Section 9.03. |
Expenses; Indemnity |
220 |
| |
Section 9.04. |
Waiver of Claim |
222 |
| |
Section 9.05. |
Successors and Assigns |
222 |
| |
Section 9.06. |
Survival |
232 |
| |
Section 9.07. |
Counterparts; Integration; Effectiveness |
232 |
| |
Section 9.08. |
Severability |
232 |
| |
Section 9.09. |
Right of Setoff |
233 |
| |
Section 9.10. |
Governing Law; Jurisdiction; Consent to Service of Process |
233 |
| |
Section 9.11. |
Waiver of Jury Trial |
234 |
| |
Section 9.12. |
Headings |
235 |
| |
Section 9.13. |
Confidentiality |
235 |
| |
Section 9.14. |
No Fiduciary Duty |
236 |
| |
Section 9.15. |
Several Obligations |
236 |
| |
Section 9.16. |
USA PATRIOT Act |
236 |
| |
Section 9.17. |
Disclosure |
236 |
| |
Section 9.18. |
Appointment for Perfection |
236 |
| |
Section 9.19. |
Interest Rate Limitation |
237 |
| |
Section 9.20. |
Intercreditor Agreement |
237 |
| |
Section 9.21. |
Conflicts |
237 |
| |
Section 9.22. |
Release of Guarantors |
237 |
| |
Section 9.23. |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
238 |
| |
Section 9.24. |
Acknowledgement Regarding Any Supported QFCs |
238 |
SCHEDULES:
| Schedule 1.01(a) |
– |
Commitment Schedule |
| Schedule 1.01(b) |
– |
Existing Letters of Credit |
| Schedule 1.01(c) |
– |
[Reserved] |
| Schedule 1.01(d) |
– |
[Reserved] |
| Schedule 1.01(e) |
– |
Existing Credit Facilities Excluded Properties |
| Schedule 1.01(f) |
– |
Excluded Properties |
| Schedule 1.01(g) |
|
Liquor License Subsidiaries |
| Schedule 3.06 |
|
Litigation and Environmental Matters |
| Schedule 3.13 |
– |
Subsidiaries |
| Schedule 5.10 |
– |
Unrestricted Subsidiaries |
| Schedule 5.18 |
|
Post-Closing Actions |
| Schedule 6.01 |
– |
Existing Indebtedness |
| Schedule 6.02 |
– |
Existing Liens |
| Schedule 6.03 |
– |
Negative Pledges |
| Schedule 6.06 |
– |
Existing Investments |
| Schedule 6.07 |
– |
Certain Dispositions |
| Schedule 9.01 |
– |
Parent Borrower’s Website Address for Electronic Delivery |
| EXHIBITS: |
|
|
| Exhibit A-1 |
– |
Form of Assignment and Assumption |
| Exhibit A-2 |
– |
Form of Affiliated Lender Assignment and Assumption |
| Exhibit B |
– |
Form of Borrowing Request |
| Exhibit C |
– |
Form of Compliance Certificate |
| Exhibit D |
– |
Form of Interest Election Request |
| Exhibit E |
– |
Form of Perfection Certificate |
| Exhibit F |
– |
[Reserved] |
| Exhibit G |
– |
Form of Promissory Note |
| Exhibit H-1 |
– |
Form of Trademark Security Agreement |
| Exhibit H-2 |
– |
Form of Patent Security Agreement |
| Exhibit H-3 |
– |
Form of Copyright Security Agreement |
| Exhibit I |
– |
Form of Guaranty Agreement |
| Exhibit J |
– |
Form of Security Agreement |
| Exhibit K |
– |
Form of Letter of Credit Request |
| Exhibit L-1 |
– |
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships |
| |
|
For U.S. Federal Income Tax Purposes) |
| Exhibit L-2 |
– |
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit L-3 |
– |
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit L-4 |
– |
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit M |
– |
Form of Solvency Certificate |
| Exhibit N |
– |
Form of Intercreditor Agreement |
FIRST LIEN CREDIT
AGREEMENT
FIRST
LIEN CREDIT AGREEMENT, dated as of July 3, 2017 and as amended pursuant to Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment
No. 4, Amendment No. 5, Amendment No. 6, Amendment No. 7, Amendment No. 8, Amendment No. 9 and,
Amendment No. 10 and Amendment No. 11 referred to below (as
further amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”),
by and among Bowlero Corp., a Delaware corporation, Kingpin Intermediate Holdings, LLC, a Delaware limited liability company (the “Parent
Borrower”), the Subsidiaries of the Parent Borrower from time to time party hereto as Borrowers, the Lenders from time to time
party hereto, JPMorgan Chase Bank, N.A. (“JPM”), in its capacities as administrative agent for the Lenders and collateral
agent for the Secured Parties (in such capacities, together with its successor and permitted assigns, the “Administrative Agent”),
the Swingline Lender and an Issuing Bank, Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”), in its capacity
as an Issuing Bank, and Goldman Sachs Bank USA (“GS Bank”), in its capacity as an Issuing Bank, with JPM, Credit Suisse
Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners (in such capacities, collectively, the
“Arrangers”).
RECITALS
A. Pursuant
to the terms of the Acquisition Agreement, on the Closing Date, (i) Parent acquired, by merger of A-B Merger Sub I Inc., a Delaware corporation
(“Merger Sub 1”), with and into the Target, a majority of the issued and outstanding equity interests of the Target
(with the Target being the surviving entity of such merger) (the “Merger Sub 1 Merger”) and (ii) A-B Merger Sub II
LLC, a Delaware limited liability company (“Merger Sub 2”), merged with and into Kingpin Intermediate (with Kingpin
Intermediate being the surviving entity of such merger) (the “Merger Sub 2 Merger”).
B. To
consummate the Transactions, certain of the Investors directly or indirectly (including by way of repayment of existing debt of the Target
and/or payments to existing shareholders of the Target) made cash contributions to Merger Sub 1 and/or the Target (with all such cash
contributions to be in the form of (i) common equity, (ii) the Series A Preferred Stock, (iii) Qualified Capital Stock or (iv) other
preferred Capital Stock or other instruments (in the case of clause (iv), having terms reasonably acceptable to the Administrative
Agent) (any such equity or instruments “Permitted Equity”), which cash contributions were in an aggregate amount that,
when taken together with all equity interests (including restricted stock or options) retained, rolled-over or directly or indirectly
invested in Permitted Equity of Holdings and all Permitted Equity of Holdings issued to, or otherwise directly or indirectly held or
acquired by, any shareholders, directors or management of the Target (together, the “Equity Contribution”) was not
less than 30% (the “Minimum Equity Percentage”) of the sum of (i) the aggregate principal amount of the Credit
Facilities and Second Lien Facility funded on the Closing Date (excluding (A) amounts drawn under the Revolving Facility on the Closing
Date for working capital purposes and/or purchase price adjustments, to fund Transaction Costs or to replace, backstop or cash collateralize
existing letters of credit and (B) any letters of credit outstanding on the Closing Date) and (ii) the Equity Contribution.
C. To
consummate the Transactions on the Closing Date, the Parent Borrower requested that the Lenders under this Agreement as of such date
(such agreement as in effect immediately prior to the Amendment No. 6 Effective Date, the “Existing Credit Agreement”)
originally extend credit in the form of (a) Initial Term Loans (excluding the Amendment No. 1 Incremental Term Loans, and for the avoidance
of doubt, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term Loans) in an original aggregate principal amount equal
to $585,000,000 and (b) a Revolving Facility with an available amount of $50,000,000, in each case, subject to increase as provided herein.
D. To
consummate the Transactions on the Closing Date, the Parent Borrower also borrowed term loans in an original aggregate principal amount
equal to $110,000,000 under the Second Lien Credit Agreement.
E. The
Lenders under the Existing Credit Agreement were willing to extend the Initial Term Loans (excluding the Amendment No. 1 Incremental
Term Loans, and for the avoidance of doubt, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term Loans) and to make
available the Revolving Facility, in each case on the terms and subject to the conditions set forth therein.
F. To
consummate certain transactions on the Amendment No. 1 Effective Date, the Parent Borrower borrowed Incremental Term Loans in an original
aggregate principal amount equal to $113,000,000 pursuant to Amendment No. 1.
G. Holdings,
the Parent Borrower, the Administrative Agent and the Lenders party thereto entered into that certain Second Amendment (“Amendment
No. 2”), dated as of July 5, 2018 (the “Amendment No. 2 Effective Date”), under which the Amendment No.
2 Term Lenders (as hereinafter defined) extended credit to the Parent Borrower in the form of Amendment No. 2 Term Loans (as hereinafter
defined) in an original aggregate principal amount equal to $715,000,000.
H. Pursuant
to Amendment No. 2, the Administrative Agent, Holdings, the Parent Borrower and the Amendment No. 2 Term Lenders agreed to certain amendments
as provided in Amendment No. 2.
I. Holdings,
the Parent Borrower, the Administrative Agent and the Lenders party thereto entered into that certain Third Amendment (“Amendment
No. 3”), dated as of November 20, 2019 (the “Amendment No. 3 Effective Date”), under which the Amendment
No. 3 Incremental Term Lenders (as hereinafter defined) extended credit to the Parent Borrower in the form of Amendment No. 3 Incremental
Term Loans (as hereinafter defined) in an original aggregate principal amount equal to $105,000,000.
J. Pursuant
to Amendment No. 3, the Administrative Agent, Holdings, the Parent Borrower and the Amendment No. 3 Incremental Term Lenders agreed to
certain amendments as provided in Amendment No. 3.
K. Holdings,
the Parent Borrower, the Administrative Agent and the Revolving Lenders party thereto (who constituted the Required Revolving Lenders
at such time) entered into that certain Fourth Amendment (“Amendment No. 4”) dated as of June 10, 2020 (the “Amendment
No. 4 Effective Date”), pursuant to which Holdings, the Parent Borrower and such Revolving Lenders agreed to certain amendments
as provided in Amendment No. 4.
L. Holdings,
the Parent Borrower, the Administrative Agent and the Revolving Lenders party thereto (who constitute the Required Revolving Lenders)
entered into that certain Fifth Amendment (“Amendment No. 5”) dated as of September 25, 2020 (the “Amendment
No. 5 Effective Date”), pursuant to which Holdings, the Parent Borrower and such Revolving Lenders have agreed to amend the
Existing Credit Agreement as provided in Amendment No. 5.
M. Holdings,
the Parent Borrower, the Administrative Agent and the Revolving Lenders party thereto entered into that certain Sixth Amendment (“Amendment
No. 6”), dated as of December 15, 2021 (the “Amendment No. 6 Effective Date”), under which the
Amendment No. 6 Replacement and Incremental Revolving Lenders (as hereinafter defined) agreed to extend credit to the Parent Borrower
in the form of the Amendment No. 6 Replacement and Incremental Revolving Facility (as hereinafter defined) in an original aggregate principal
amount equal to $140,000,000.
N. Pursuant
to Amendment No. 6, the Administrative Agent, Holdings, the Parent Borrower and the Amendment No. 6 Replacement and Incremental Revolving
Lenders agreed to certain amendments as provided in Amendment No. 6.
O. Holdings,
the Parent Borrower, the Administrative Agent and the Revolving Lenders party thereto entered into Amendment No. 7 on the Amendment No.
7 Effective Date, under which the Additional Amendment No. 6 Replacement and Incremental Revolving Lenders (as defined in Amendment No.
7) agreed to extend credit to the Parent Borrower in the form of Additional Amendment No. 6 Replacement and Incremental Revolving Commitments
(as defined in Amendment No. 7) in an original aggregate principal amount equal to $25,000,000.
P. Pursuant
to Amendment No. 7, the Administrative Agent, Holdings, the Parent Borrower and the Revolving Lenders party thereto agreed to certain
amendments as provided in Amendment No. 7.
Q. Holdings,
the Parent Borrower, the Administrative Agent and the Lenders party thereto entered into that certain Eighth Amendment (“Amendment
No. 8”), dated as of February 8, 2023 (the “Amendment No. 8 Effective Date”), under which (x) the Amendment
No. 8 Term Lenders (as hereinafter defined) extended credit to the Parent Borrower in the form of Amendment No. 8 Term Loans (as hereinafter
defined) in an original aggregate principal amount equal to $900,000,000 and (y) the Amendment No. 8 Incremental Revolving Lenders (as
defined in Amendment No. 8) agreed to extend credit to the Parent Borrower in an original aggregate principal amount equal to $35,000,000.
R. Pursuant
to Amendment No. 8, the Administrative Agent, Holdings, the Parent Borrower and the Lenders party thereto agreed to certain amendments
as provided in Amendment No. 8.
S. Holdings,
the Parent Borrower, the Administrative Agent and the Lenders party thereto entered into that certain Ninth Amendment (“Amendment
No. 9”), dated as of June 13, 2023 (the “Amendment No. 9 Effective Date”), under which (x) the Amendment
No. 9 Incremental Term Lenders (as hereinafter defined) extended credit to the Parent Borrower in the form of Amendment No. 9 Incremental
Term Loans (as hereinafter defined) in an original aggregate principal amount equal to $250,000,000 and (y) the Amendment No. 9 Incremental
Revolving Lenders (as hereinafter defined) agreed to extend credit to the Parent Borrower in an original aggregate principal amount equal
to $35,000,000.
T. Pursuant
to Amendment No. 9, the Administrative Agent, Holdings, the Parent Borrower and the Amendment No. 9 Incremental Lenders agreed to certain
amendments as provided in Amendment No. 9.
U. Holdings,
the Parent Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender and the Revolving Lenders party thereto entered
into entered into that certain Tenth Amendment (“Amendment No. 10”), dated as of June 18, 2024 (the
“Amendment No. 10 Effective Date”), under which the Amendment No. 10 Incremental Revolving Lenders (as defined in
Amendment No. 10) agreed to extend credit to the Parent Borrower in the form of Additional Amendment
No. 6 Replacement and10
Incremental Revolving Commitments (as defined in Amendment No. 10) in an original aggregate principal amount equal to $50,000,000.
V. Pursuant
to Amendment No. 10, the Administrative Agent, Holdings, the Parent Borrower, the Issuing Bank, the Swingline Lender and the Amendment
No. 10 Incremental Revolving Lenders agreed to certain amendments as provided in Amendment No. 10.
W. Holdings,
the Parent Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender and the Revolving Lenders party thereto entered
into that certain Eleventh Amendment
(“Amendment
No. 11”), dated as of August 23, 2024 (the “Amendment No. 11 Effective Date”), under which the Amendment
No. 11 Incremental Revolving Lenders (as defined in Amendment No. 11) agreed to extend credit to the Parent Borrower in the form of Amendment
No. 11 Incremental Revolving Commitments (as defined in Amendment No. 11) in an original aggregate principal amount equal to $50,000,000.
X. Pursuant
to Amendment No. 11, the Administrative Agent, Holdings, the Parent Borrower, the Issuing Bank, the Swingline Lender and the Amendment
No. 11 Incremental Revolving Lenders agreed to certain amendments as provided in Amendment No. 11.
Accordingly,
the parties hereto agree as follows:
Article
1 DEFINITIONS
Section
1.01. Defined
Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement
that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH”
means automated clearing house transfers.
“Acquisition”
means the Mergers and the other transactions contemplated by the Acquisition Agreement.
“Acquisition
Agreement” means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios, Parent,
Merger Sub 1, Merger Sub 2, the Target and the other Persons party thereto.
“Additional
Agreement” has the meaning assigned to such term in Article
8.
“Additional
Borrower” has the meaning assigned to such term in Section
1.12(a).
“Additional
Borrower Agreement” has the meaning assigned to such term in Section
1.12(a).
“Additional
Commitment” means any commitment hereunder added pursuant to Sections 2.22,
2.23 or 9.02(c)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitments, the Amendment No. 6 Replacement and Incremental
Revolving Credit Commitments, the Amendment No. 8 Term Loan Commitments and the Amendment No. 9 Incremental Term Loan Commitments).
“Additional
Credit Facilities” means any credit facilities added pursuant to Sections 2.22,
2.23 or 9.02(c)
(including, for the avoidance of doubt, the Amendment No. 6 Replacement and Incremental Revolving Facility).
“Additional
Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional
Letter of Credit Facility” means any letter of credit facility established by the Parent Borrower and/or any Restricted Subsidiary
outside of this Agreement to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary
course of business.
“Additional
Loans” means any Additional Revolving Loans and any Additional Term Loans.
“Additional
Revolving Credit Commitments” means any revolving credit commitment added pursuant to Sections 2.22,
2.23 or 9.02(c)(ii)
(including, for the avoidance of doubt, the Amendment No. 6 Replacement and Incremental Revolving Credit Commitments).
“Additional
Revolving Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such
time of all Additional Revolving Loans of such Person, plus the aggregate amount at such time of such Person’s LC Exposure
and Swingline Exposure, in each case, attributable to its Additional Revolving Credit Commitment (including, for the avoidance of doubt,
the Amendment No. 6 Replacement and Incremental Revolving Credit Exposure).
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22,
2.23 or 9.02(c)(ii)
(including, for the avoidance of doubt, the Amendment No. 6 Replacement and Incremental Revolving Facility).
“Additional
Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure
(including, for the avoidance of doubt, the Amendment No. 6 Replacement and Incremental Revolving Lenders).
“Additional
Revolving Loans” means any revolving loan added pursuant to Sections 2.22,
2.23 or 9.02(c)(ii)
(including, for the avoidance of doubt, the Amendment No. 6 Replacement and Incremental Revolving Loans).
“Additional
Term Loan Commitments” means any term loan commitment added pursuant to Sections 2.22,
2.23 or 9.02(c)(i)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment, the Amendment No. 8 Term Loan Commitments and the
Amendment No. 9 Incremental Term Loan Commitments).
“Additional
Term Loans” means any term loan added pursuant to Section 2.22,
2.23 or 9.02(c)(i)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loans, the Amendment No. 3 Incremental Term Loans, the Amendment
No. 8 Term Loans and the Amendment No. 9 Incremental Term Loans).
“Adjusted
Daily Simple SOFR” means (i) for any Amendment No. 8 Term Loan, an interest rate per annum equal to Daily Simple SOFR for the
applicable Interest Period plus 0.00% and (ii) for any Revolving Loan, an interest rate per annum equal to Daily Simple SOFR plus
0.10%.
“Adjusted
Term SOFR Rate” means (i) for any Amendment No. 8 Term Loan, an interest rate per annum equal to the Term SOFR Rate for the
applicable Interest Period plus 0.00% and (ii) for any Revolving Loan, an interest rate per annum equal to the Term SOFR Rate
for the applicable Interest Period plus (x) for a one month Interest Period, 0.10%, (y) for a three month Interest Period, 0.15%
and (z) for a six month Interest Period, 0.25%.
“Adjustment
Date” means the date of delivery of financial statements required to be delivered pursuant to Section
5.01(a) or Section 5.01(b), as applicable.
“Administrative
Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Administrative
Questionnaire” has the meaning assigned to such term in Section
2.22(d).
“Adverse
Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation
or arbitration (whether or not purportedly on behalf of Holdings, the Parent Borrower or any of its Restricted Subsidiaries) at law or
in equity, or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Parent
Borrower or any of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Parent Borrower or any of its
Restricted Subsidiaries or any property of Holdings, the Parent Borrower or any of its Restricted Subsidiaries.
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio
company of any Investor and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt
Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof.
“Affiliated
Lender” means any Non-Debt Fund Affiliate, Holdings, the Parent Borrower and/or any of its Restricted Subsidiaries.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with
the consent of any party whose consent is required by Section
9.05) and accepted by the Administrative Agent in the form of Exhibit A-2 or any other form approved by the Administrative
Agent and the Parent Borrower.
“Affiliated
Lender Cap” has the meaning assigned to such term in Section
9.05(g)(iv).
“Aggregate
Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at such
time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such
day plus 0.50%, (b) to the extent ascertainable, the Adjusted Term SOFR Rate (which rate shall be calculated based upon an Interest
Period of one month as published two U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day,
the immediately preceding Business Day)) plus 1.00%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for
any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication
time for the Term SOFR Reference Rate) as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology, (c)
the Prime Rate and (d) solely with respect to Amendment No. 8 Term Loans, 1.00%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as the case may be, shall be effective from and including
the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as the case may
be.
“Amendment
No. 1” means the First Incremental Amendment, dated as of the Amendment No. 1 Effective Date, among the Parent Borrower, the
other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment
No. 1 Effective Date” means March 28, 2018.
“Amendment
No. 1 Incremental Term Lender” means any Person with an Initial Term Loan Commitment to make Amendment No. 1 Incremental Term
Loans.
“Amendment
No. 1 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 1 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 1 Transactions” means the entering into of Amendment No. 1, the incurrence of the Amendment No. 1 Incremental Term Loans,
the repayment in full of all outstanding amounts under the Second Lien Credit Agreement and the payment of all fees, expenses and other
costs incurred in connection with the foregoing.
“Amendment
No. 2” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Term Lender” means each “2018 Refinancing Term Loan Lender” as such term is defined in Amendment No. 2.
“Amendment
No. 2 Term Loan Commitment” means the “2018 Refinancing Term Loan Commitment” as such term is defined in Amendment
No. 2.
“Amendment
No. 2 Term Loans” means the “2018 Refinancing Term Loans” as such term is defined in Amendment No. 2 and all Amendment
No. 3 Incremental Term Loans.
“Amendment
No. 2 Transactions” means the entering into of Amendment No. 2, the incurrence of the Amendment No. 2 Term Loans and the payment
of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 3” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 3 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 3 Incremental Term Lender” means each Lender under this Agreement that holds an Amendment No. 3 Incremental Term Loan and/or
a commitment to make an Amendment No. 3 Incremental Term Loan (as applicable).
“Amendment
No. 3 Incremental Term Loan Commitment” means an aggregate principal amount set forth opposite such Amendment No. 3 Incremental
Term Lender’s name contained in Schedule 1 in Amendment No. 3. The aggregate amount of the Amendment No. 3 Incremental Term Loan
Commitments on the Amendment No. 3 Effective Date is $105,000,000.
“Amendment
No. 3 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 3 on the Amendment No. 3 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 3 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 3 Transactions” means the entering into of Amendment No. 3, the incurrence of the Amendment No. 3 Incremental Term Loans
and the payment of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 4” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 4 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 5” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 5 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 6” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 6 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 6 Replacement and Incremental Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person
to make Amendment No. 6 Replacement and Incremental Revolving Loans (and acquire participations in Letters of Credit and Swingline Loans)
hereunder as set forth on the Commitment Schedule, or in the Assignment Agreement pursuant to which such Lender assumed its Amendment
No 6. Replacement and Incremental Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant
to Section 2.09 or 2.19,
(b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.05 or (c) increased pursuant to Section 2.22.
The aggregate amount of the Amendment No. 6 Replacement and Incremental Revolving Credit Commitments as of the Amendment No. 1011
Effective Date is $285,000,000335,000,000.
“Amendment
No. 6 Replacement and Incremental Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding
Amount of all Amendment No. 6 Replacement and Incremental Revolving Loans of such Lender, plus the aggregate amount at such time
of such Lender’s LC Exposure and Swingline Exposure, in each case, attributable to its Amendment No. 6 Replacement and Incremental
Revolving Credit Commitment.
“Amendment
No. 6 Replacement and Incremental Revolving Credit Maturity Date” means the date that is the earlier of (i) five years after
the Amendment No. 6 Effective Date and (ii) the date that is 90 calendar days prior to the scheduled maturity date of any Term Loans
outstanding in an aggregate principal amount exceeding $175,000,000.
“Amendment
No. 6 Replacement and Incremental Revolving Facility” means the Amendment No. 6 Replacement and Incremental Revolving Credit
Commitments and the Amendment No. 6 Replacement and Incremental Revolving Loans and other extensions of credit thereunder.
“Amendment
No. 6 Replacement and Incremental Revolving Lender” means any Person with an Amendment No. 6 Replacement and Incremental Revolving
Credit Commitment or any Amendment No. 6 Replacement and Incremental Revolving Credit Exposure.
“Amendment
No. 6 Replacement and Incremental Revolving Loan” means any revolving loan made by the Amendment No. 6 Replacement and Incremental
Revolving Lenders to the Parent Borrower pursuant to Section
2.01(a)(ii).
“Amendment
No. 7” means the Seventh Amendment dated as of December 17, 2021 among Holdings, the Parent Borrower, the Administrative Agent
and the Revolving Lenders party thereto.
“Amendment
No. 7 Effective Date” means the “Seventh Amendment Effective Date” as defined in Amendment No. 7.
“Amendment
No. 8” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 8 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 8 Term Lender” means each “Amendment No. 8 Term Lender” as such term is defined in Amendment No. 8.
“Amendment
No. 8 Term Loan Commitment” means each “Amendment No. 8 Term Loan Commitment” as such term is defined in Amendment
No. 8.
“Amendment
No. 8 Term Loan Maturity Date” means the date that is five years after the Amendment No. 8 Effective Date.
“Amendment
No. 8 Term Loans” means the “Amendment No. 8 Term Loans” as such term is defined in Amendment No. 8 and all Amendment
No. 9 Incremental Term Loans. For the avoidance of doubt, when funded, Amendment No. 9 Incremental Term Loans shall constitute the same
Class hereunder as the Amendment No. 8 Term Loans.
“Amendment
No. 8 Transactions” means the entering into of Amendment No. 8, the incurrence of the Amendment No. 8 Term Loans and the Amendment
No. 8 Incremental Revolving Commitments (as defined in Amendment No. 8), the other transactions contemplated thereby and the payment
of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 9” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 9 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 9 Incremental Lenders” means, collectively, the Amendment No. 9 Incremental Term Lenders and the Amendment No. 9 Incremental
Revolving Lenders.
“Amendment
No. 9 Incremental Revolving Lenders” means the “Amendment No. 9 Incremental Revolving Lenders” as such term is
defined in Amendment No. 9.
“Amendment
No. 9 Incremental Term Lender” means each Lender under this Agreement that holds an Amendment No. 9 Incremental Term Loan and/or
a commitment to make an Amendment No. 9 Incremental Term Loan (as applicable).
“Amendment
No. 9 Incremental Term Loan Commitment” means an aggregate principal amount set forth opposite such Amendment No. 9 Incremental
Term Lender’s name contained in Schedule 1 in Amendment No. 9. The aggregate amount of the Amendment No. 9 Incremental Term Loan
Commitments on the Amendment No. 9 Effective Date is $250,000,000.
“Amendment
No. 9 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 9 on the Amendment No. 9 Effective Date.
For the avoidance of doubt, when funded, Amendment No. 9 Incremental Term Loans shall constitute the same Class hereunder as the Amendment
No. 8 Term Loans.
“Amendment
No. 9 Transactions” means the entering into of Amendment No. 9, the incurrence of the Amendment No. 9 Incremental Term Loans,
the incurrence of the Amendment No. 9 Incremental Revolving Commitments (as defined in Amendment No. 9) and the payment of all fees,
expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 10” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 10 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 11” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 11 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Applicable
Charges” has the meaning set forth in Section
9.19.
“Applicable
Percentage” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which
is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under
such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan
Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate
amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class;
provided that for purposes of Section 2.21
and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s Revolving Credit Commitment shall be disregarded
for any relevant calculation. In the case of clause (b), in the event that the Revolving Credit Commitments of any Class have
expired or been terminated, the Applicable Percentage of any Revolving Lender of such Class shall be determined on the basis of the Revolving
Credit Exposure of such Revolving Lender with respect to such Class, giving effect to any assignments and to any Revolving Lender’s
status as a Defaulting Lender at the time of determination.
“Applicable
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Applicable
Rate” means, (a) for any day from and after the Amendment No. 8 Effective Date, for Amendment No. 8 Term Loans, (i) in the
case of ABR Loans, 2.50% per annum and (ii) in the case of Adjusted Term SOFR Loans, 3.50% per annum and (b) for any day from and after
the Amendment No. 6
Effective Date,
for Revolving Loans, the rate per annum set forth below under the caption “ABR Spread” or “Adjusted Term SOFR Rate
Spread”, as the case may be, based upon the First Lien Leverage Ratio as of the last day of the most recently ended Test Period;
provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Amendment
No. 6 Effective Date, the “Applicable Rate” for any Revolving Loans shall have been the applicable rate per annum set forth
below in Category 1.
| First Lien Leverage Ratio |
ABR Spread for
Revolving Loans |
Adjusted Term SOFR
Rate Spread for
Revolving Loans |
| Category 1 |
|
|
| Greater than 4.35 to 1.00 |
2.00% |
3.00% |
| Category 2 |
|
|
Less than or equal to 4.35 to 1.00
and greater than
3.85 to 1.00 |
1.75% |
2.75% |
| Category 3 |
|
|
| Less than or equal to 3.85 to 1.00 |
1.50% |
2.50% |
The Applicable
Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien Leverage
Ratio in accordance with the table above; provided that if financial statements are not delivered when required pursuant to Section
5.01(a) or (b), as applicable, the “Applicable
Rate” for Revolving Loans shall be the rate per annum set forth above in Category 1 until such financial statements are
delivered in compliance with Section 5.01(a)
or (b), as applicable.
The Applicable
Rate for any Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing Amendment,
Incremental Facility Amendment or Extension Amendment.
“Approved
Counterparty” means any Person that is, or is an Affiliate of, the Administrative Agent, a Lender or an Arranger, or that is
a Person designated in writing by the Parent Borrower to the Administrative Agent as an “Approved Counterparty”.
“Approved
Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered,
advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Lender.
“Arrangers”
has the meaning assigned to such term in the preamble to this Agreement and shall include for purposes of Section
9.03, the “Amendment No. 2 Lead Arrangers” (as defined in Amendment No. 2), the “Amendment No. 8 Lead Arrangers”
(as defined in Amendment No. 8) and the “Amendment No. 9 Lead Arrangers” (as defined in Amendment No. 9).
“Assignment
Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.05), and
accepted by the Administrative Agent in the form of Exhibit A-1 or any other form approved by the Administrative Agent and the
Parent Borrower.
“ASU”
has the meaning assigned to such term in Section 1.04(c).
“Atairos”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities managed,
advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of the foregoing).
“Attributable
Debt” means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease Obligations
arising as a result of a modification of the Carlyle Sale/Leaseback Documents or the Carlyle Sale/Leaseback 2014 Documents to the extent
such modification is not prohibited hereunder, (b) Capital Lease Obligations arising as a result of the classification of the Carlyle
Sale/Leaseback, the Carlyle Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback Transaction as a Capital Lease, (c) Capital Lease
Obligations arising as a result of any Excluded Property Sale/Leaseback Transaction and (d) Capital Lease Obligations arising as a result
of any Sale and Lease-Back Transaction (if any). For the avoidance of doubt, this definition of “Attributable Debt” shall
be subject in all respects to the provisions of Section 1.04(c).
“Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged
by the Parent Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction
pursuant to the definition of “Dutch Auction”.
“Auction
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Notice” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Party” has the meaning set forth in the definition of “Dutch Auction”.
“Auction
Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability
Period” means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination of
the Amendment No. 6 Replacement and Incremental Revolving Credit Commitments pursuant to Section
2.09, (b) the date of termination of the Amendment No. 6 Replacement and Incremental Revolving Credit Commitment of each Amendment
No. 6 Replacement and Incremental Revolving Lender to make Amendment No. 6 Replacement and Incremental Revolving Loans and the obligation
of each Issuing Bank to issue Letters of Credit pursuant to Section
7.01 and (c) the Amendment No. 6 Replacement and Incremental Revolving Credit Maturity Date.
“Available
Amount” means, at any time, an amount equal to, without duplication:
(a) the
sum of:
(i) the
greater of $119,000,000 and 35% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii) the
CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section
6.04(a)(iii)(A) or Restricted Debt Payment pursuant to Section
6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant to Section
7.01(a) or, with respect to the Parent Borrower, Sections 7.01(f)
or (g) at the time of determination pursuant to Section
1.04(e)); plus
(iii) the
amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting a Cure
Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received from the Parent
Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)) received as Cash equity by the Parent Borrower or any of its Restricted Subsidiaries, plus the fair market value,
as determined by the Parent Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Parent
Borrower or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts
(x) constituting a Cure Amount or an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock
or (y) received from the Parent Borrower or any Restricted Subsidiary), in each case, during the period from and including the day
immediately following the Closing Date through and including such time; plus
(iv) the
aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Parent Borrower or any Restricted
Subsidiary issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Parent Borrower or
any Restricted Subsidiary), which has been converted into or exchanged for Capital Stock of the Parent Borrower, any Restricted Subsidiary
or any Parent Company that does not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents
(as determined by the Parent Borrower in good faith) and the fair market value (as determined by the Parent Borrower in good faith) of
any property or assets received by the Parent Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case,
during the period from and including the day immediately following the Closing Date through and including such time; plus
(v) the
net proceeds received by the Parent Borrower or any Restricted Subsidiary during the period from and including the day immediately following
the Closing Date through and including such time in connection with the Disposition to any Person (other than the Parent Borrower or
any Restricted Subsidiary) of any Investment made pursuant to Section
6.06(r)(i); plus
(vi) to
the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such
Investment, the proceeds received by the Parent Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i)
or, without duplication, otherwise received by the Parent Borrower or any Restricted Subsidiary from an Unrestricted Subsidiary (including
any proceeds received on account of any issuance of Capital Stock by any Unrestricted Subsidiary (other than solely
on account
of the issuance of Capital Stock to the Parent Borrower or any Restricted Subsidiary)); plus
(vii) an
amount equal to the sum of (A) the amount of any Investments by the Parent Borrower or any Restricted Subsidiary pursuant to Section
6.06(r)(i) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any Investments
by the Parent Borrower or any Restricted Subsidiary pursuant to Section
6.06(r)(i) in any Unrestricted Subsidiary that has been merged, consolidated or amalgamated with or into, or is liquidated, wound
up or dissolved into, the Parent Borrower or any Restricted Subsidiary and (C) the fair market value (as determined by the Parent Borrower
in good faith) of the property or assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed
to the Parent Borrower or any Restricted Subsidiary, in each case, during the period from and including the day immediately following
the Closing Date through and including such time; plus
(viii) the
amount of any Declined Proceeds; minus
(b) an
amount equal to the sum of (i) Restricted Payments made pursuant to Section
6.04(a)(iii)(A), plus (ii) Restricted Debt Payments made pursuant to Section
6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section
6.06(r)(i), in each case, after the Closing Date and prior to such time, or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Parent Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase
the Available Amount) received by the Parent Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1) contributions
in respect of Qualified Capital Stock (other than any amounts or other assets received from the Parent Borrower or any of its Restricted
Subsidiaries), and
(2) the
sale of Qualified Capital Stock of the Parent Borrower or any of its Restricted Subsidiaries (other than (x) to the Parent Borrower or
any Restricted Subsidiary of the Parent Borrower, (y) pursuant to any management equity plan or stock option plan or any other management
or employee benefit plan or (z) with the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)),
in each case, designated
as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after the date the relevant
capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded from the calculation of
the Available Amount.
“Available
RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to
Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Parent Borrower or any Restricted
Subsidiary to make Investments pursuant to Section 6.06(q)(ii).
“Available
RP Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii),
and (a)(x)
minus the aggregate amount of the Available RP Capacity Amount utilized by the Parent Borrower or any Restricted Subsidiary to (a)
make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted
Debt Payments pursuant to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section
6.01(ll).
“Available
Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for
such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof),
as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining
any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance
of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause
(d) of Section 1.11.
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any
liability of an Affected Financial Institution.
“Bail-In
Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than
through liquidation, administration or other insolvency proceedings).
“Banking
Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing
cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee
credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar
to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking
Services Obligations” means any and all obligations of any Loan Party or any Restricted Subsidiary, whether absolute or contingent
and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor) (a) under any arrangement that is in effect on the Closing Date between any Loan Party or Restricted Subsidiary and a counterparty
that is an Approved Counterparty at such time or (b) under any arrangement that is entered into after the Closing Date by any Loan Party
or Restricted Subsidiary with any counterparty that is an Approved Counterparty at the time such arrangement is entered into (or thereafter,
if such counterparty is so designated as an Approved Counterparty at a later date), in each case, in connection with Banking Services
(other than Banking Services designated to the Administrative Agent in writing by the Parent Borrower as not constituting “Banking
Services Obligations” for purposes of the Loan Documents), it being understood that each counterparty thereto shall be deemed (A)
to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of
Article 8, Section
9.03 and Section 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Benchmark”
means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date
have occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable
Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark”
shall include, as applicable, the published component used in the calculation thereof.
“Benchmark
Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date:
(a)
Adjusted Daily Simple SOFR; and
(b)
the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Parent Borrower as the replacement
for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection or recommendation
of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or
then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated
syndicated credit facilities at such time and (ii) the related Benchmark Replacement Adjustment.
If
the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than 0.00%, the Benchmark Replacement
will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.
“Benchmark
Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement
for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment,
or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected
by the Administrative Agent and the Parent Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection
or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such
Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement
Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or
determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated
syndicated credit facilities. Each Benchmark Replacement Adjustment shall be subject to the consent of the Parent Borrower (not to be
unreasonably withheld or delayed).
“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational
changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the
definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing
requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage
provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (in consultation with the
Parent Borrower) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration
thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides
that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that
no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative
Agent decides is reasonably necessary (in consultation with the Parent Borrower) in connection with the administration of this Agreement
and the other Loan Documents, so long as consistent with the treatment of similar Dollar-denominated syndicated credit facilities for
companies owned by top-tier financial sponsors in North America in respect of which the Administrative Agent acts as administrative agent).
“Benchmark
Replacement Date” means, the earliest to occur of the following events with respect to the then-current Benchmark:
(a)
in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date
of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such
Benchmark (or such component thereof) or
(b)
in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication
of information referenced therein.
For
the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the
Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference
Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause
(a) or (b) with respect to any Benchmark only upon the occurrence of the applicable event or events set forth therein with
respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark
Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)
a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely; provided that, at the
time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such
Benchmark (or such component thereof);
(b)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Board, the Federal Reserve Bank of New York, the CME Term SOFR Administrator, an insolvency
official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over
the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over
the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such
component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely;
provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available
Tenor of such Benchmark (or such component thereof); or
(c)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no
longer representative.
For
the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark only
if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of
such Benchmark (or the published component used in the calculation thereof).
“Benchmark
Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses
(a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark
for all purposes hereunder and under any Loan Document in accordance with Section 1.11 and (b) ending at the time that
a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 1.11.
“Board”
means the Board of Governors of the Federal Reserve System of the U.S.
“Bona
Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and
which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of the
Parent Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no personnel
involved with any investment in such Person or the management, control or operation of such Person (i) makes, has the right to make or
participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other
than information that is publicly available) relating to Holdings, the Parent Borrower or its subsidiaries or any entity that forms a
part of any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not
include any Person that is separately identified to the Arrangers or the Administrative Agent in accordance with clause (a)(i)
or (a)(ii) of the definition of “Disqualified Institution” or any reasonably identifiable Affiliate of any such Person
on the basis of such Affiliate’s name.
“Borrowers”
means (a) as of the Closing Date, the Parent Borrower and (b) from time to time, in respect of a given Class of Loans or Commitments,
each Additional Borrower with respect to such Class, in each case individually or collectively as the context may require or permit.
Following the consummation of a transaction permitted hereunder that results in a Successor Borrower or Successor Parent Borrower, such
Successor Borrower or Successor Parent Borrower shall be substituted for the existing Borrower to which it is the successor. In the event
that more than one Borrower is liable in respect of the Obligations of any Class, such Borrowers shall jointly and severally liable with
respect to the Obligations of such Class unless provided to the contrary in the applicable Additional Borrower Agreement. For the avoidance
of doubt, any reference in any Loan Document to a Borrower (or the Borrowers) shall be construed, where the context requires, to refer
to a Borrower (or the Borrowers) in respect of the relevant Class of Loans or Commitments, and not to make any Borrower primarily liable
for Obligations of any Class in respect of which it is not a Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of Adjusted Term SOFR Rate
Loans, as to which a single Interest Period is in effect.
“Borrowing
Request” means a request by a Borrower for a Borrowing in accordance with Section
2.03 and substantially in the form attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative
Agent and the Parent Borrower.
“Bowling
Equipment” means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front
desk systems), lanes, lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases)
that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section
1.04(c)), is or should be accounted for as a capital or finance lease on the balance sheet of that Person.
“Capital
Lease Obligations” means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized
as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but
excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Parent Borrower that is subject to regulation as an insurance
company (or any Restricted Subsidiary thereof).
“Carlyle
Sale/Leaseback” means the Sale and Lease-Back Transactions effected pursuant to the Carlyle Sale/Leaseback Documents.
“Carlyle
Sale/Leaseback 2014” means the Sale and Lease-Back Transactions effected pursuant to the Carlyle Sale/Leaseback 2014 Documents.
“Carlyle
Sale/Leaseback 2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and Brunswick Centres,
Inc. (jointly and severally, as tenant), as amended by that certain First Lease Amendment, dated as of December 26, 2017, that certain
Second Lease Amendment, dated as of April 16, 2021, and that certain Third Lease Amendment, dated as of November 16, 2021, and (ii) the
Guaranty dated as of September 18, 2014 by Holdings in favor of BW Bowling Properties LP, BW Bowling Properties Canada Inc. and BW Bowling
Properties LLC, in each case as the same may be amended, modified, supplemented, restated, refinanced or replaced through the date hereof
and from time to time hereafter, and including all basic lease information and all other agreements, documents and instruments relating
to the Carlyle Sale/Leaseback 2014 and all exhibits and schedules to any of the foregoing.
“Carlyle
Sale/Leaseback Documents” means (I) (a) the Amended and Restated Lease I Agreement dated as of May 20, 2019, by and among CNLI
AMF I LP (as successor to iStar Bowling Centers I LP) and, solely with respect to the Puerto Rico Site (as defined therein), CNLI AMF
I PR LP (as successor to iStar Bowling Centers PR LP), as landlord, and AMF Bowling Centers, Inc., Bowlero Sawgrass, LLC, and Bowlero
East Hartford, LLC, as tenant, as amended by (i) that certain First Amendment to Amended and Restated Lease I Agreement (to Remove Shirley
Site), dated as of June 28, 2019, (ii) that certain Second Amendment to Amended and Restated Lease I Agreement (to Remove Westchester
Site), dated as of December 30, 2019, (iii) that certain Third Amendment to Amended and Restated Lease I Agreement, dated as of May 18,
2020, (iv) that certain Fourth Amendment to Amended and Restated Lease I Agreement (to Remove Marietta Site), dated as of June 2, 2020,
(v) that certain Fifth Amendment to Amended and Restated
Lease I Agreement,
dated as of September 25, 2020, (vi) that certain Sixth Amendment to Amended and Restated Lease I Agreement (to Remove Lincoln Site),
dated as of January 29, 2021, (vii) that certain Seventh Amendment to Amended and Restated Lease I Agreement (to Remove Venice Lanes
Site), dated as of March 29, 2021, (viii) that certain Eighth Amendment to Amended and Restated Lease I Agreement (to Remove Pro Bowl
Lanes Site), dated as of May 14, 2021, (ix) that certain Ninth Amendment to Amended and Restated Lease I Agreement (to Remove Country
Club Lanes Site), dated as of September 28, 2021, (x) that certain Tenth Amendment to Amended and Restated Lease I Agreement, dated November
16, 2021, (xi) that certain Eleventh Amendment to Amended and Restated Lease I Agreement (to Remove Colonial Lanes Site), dated as of
January 12, 2022, (xii) that certain Twelfth Amendment to Amended and Restated Lease I Agreement (to Extend Original IC Expiration Date),
dated as of September 20, 2022, (xiii) that certain Thirteenth Amendment to Amended and Restated Lease I Agreement (to Extend Original
IC Expiration Date), dated as of November 30, 2022, and (xiv) that certain Fourteenth Amendment to Amended and Restated Lease I Agreement
(to Add Woodbridge and Short Pump), dated as of December 30, 2022, and (b) that certain Amended and Restated Guaranty dated as of May
20, 2019 by Holdings in favor of CNLI AMF I LP (as successor to iStar Bowling Centers I LP) and CNLI AMF I PR LP (as successor to iStar
Bowling Centers PR LP), and (II) the Amended and Restated Lease II Agreement dated as of May 20, 2019, by and between CNLI AMF II LP
(as successor to iStar Bowling Centers II LP), as landlord, and AMF Bowling Centers, Inc., as tenant, as amended by (i) that certain
First Amendment to Amended and Restated Lease II Agreement (to Remove Humble Lanes Site), dated as of July 15, 2019, (ii) that certain
Second Amendment to Amended and Restated Lease II Agreement (to Remove Laurel Lanes Site), dated as of December 19, 2019, (iii) that
certain Third Amendment to Amended and Restated Lease II Agreement, dated as of May 18, 2020, (iv) that certain Fourth Amendment to Amended
and Restated Lease II Agreement, dated as of September 25, 2020, (v) that certain Fifth Amendment to Amended and Restated Lease II Agreement
(to Remove Deer Valley Lanes Site), dated as of March 29, 2021, (vi) that certain Sixth Amendment to Amended and Restated Lease II Agreement,
dated as of November 16, 2021, (vii) that certain Seventh Amendment to Amended and Restated Lease II Agreement (to Remove Terrace Gardens
Lanes Site), dated as of January 21, 2022, (viii) that certain Eighth Amendment to Amended and Restated Lease II Agreement (to Extend
Original IC Expiration Date), dated as of September 29, 2022, (ix) that certain Ninth Amendment to Amended and Restated Lease II Agreement
(to Remove Smithtown Lanes Site), dated as of October 28, 2022, and (x) that certain Tenth Amendment to Amended and Restated Lease II
Agreement (to Extend Original IC Expiration Date), dated as of November 30, 2022, and (b) that certain Amended and Restated Guaranty
dated as of May 20, 2019 by Holdings in favor of CNLI AMF II LP (as successor to iStar Bowling Centers II LP), in each case as the same
may be amended, modified, supplemented, restated, refinanced or replaced through the date hereof and from time to time hereafter, and
including all basic lease information and all other agreements, documents and instruments relating to the Carlyle Sale/Leaseback and
all exhibits and schedules to any of the foregoing.
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance
with GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and unconditionally
guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union or any political
subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of the European Union
or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the U.S., U.K., Canada or a
member state of the European Union or any political subdivision thereof, in each case maturing within two years after such date and,
in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations
issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or by any foreign
government, in each case maturing within two years after such date and having, at the time of the acquisition thereof, a rating of at
least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor
Moody’s shall
be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase
agreements and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s
(or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally
recognized statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’
acceptances (or similar instruments) maturing within one year after such date and issued or accepted by any Lender or “Lender”
in respect of the Second Lien Facility or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S.,
any state thereof or the District of Columbia or any political subdivision thereof or any foreign bank or its branches or agencies and
that has capital and surplus of not less than $75,000,000 and, in each case, repurchase agreements and reverse repurchase agreements
relating thereto; (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit
issued by any commercial bank having capital and surplus of not less than $75,000,000; (f) Indebtedness or Preferred Capital Stock issued
by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the
time, neither is issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating organization)
with maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state
of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(h) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited
to make in accordance with applicable law; and (i) shares or other interests of any investment company, money market mutual fund or other
money market or enhanced high yield fund that invests 95% or more of its assets in instruments of the types specified in clauses (a)
through (h) above (which investment company or fund may also hold Cash pending investment or distribution).
The
term “Cash Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling,
Mexican Pesos, any national currency of any member state of the European Union and any other currency held by the Parent Borrower or
any Restricted Subsidiary in the ordinary course of business); provided that such amounts, if received by the Parent Borrower
or any Restricted Subsidiary, are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency
of any member state of the European Union or any other currency held by the Parent Borrower or any Restricted Subsidiary in the ordinary
course of business as promptly as practicable (and in any event within ten Business Days following receipt thereof), (y) Investments
of the type and maturity described in clauses (a) through (i) above of foreign obligors, which Investments or obligors
(or the parent companies thereof) have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies
and (z) other short-term Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management
in Investments analogous to the Investments described in clauses (a) through (i) and in this paragraph.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender
or any Issuing Bank (or, for purposes of Section 2.15(b),
by any lending office of such Lender or such Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if
any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after
the Closing Date (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on
the Closing Date). For purposes of this definition and Section
2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority)
or U.S. regulatory authorities, in each case
pursuant to Basel
III, shall in each case described in clauses (a), (b) and (c) above, be deemed to be a Change in Law, regardless
of the date enacted, adopted, issued or implemented.
“Change
of Control” means the earliest to occur of:
(a) the
acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act as in effect on the
Closing Date), including any group acting for the purpose of acquiring, holding or disposing of Securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any Employee Benefit Plan and/or Person acting
as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted Holders and (iii) any underwriter in connection
with a public offering, of Capital Stock of Holdings representing more than 50% of the total voting power of all of the outstanding voting
Capital Stock of Holdings; and
(b) the
Parent Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings
Reorganization Transaction or Permitted Reorganization).
Notwithstanding
the foregoing, a passive holding company or special purpose acquisition vehicle or a Subsidiary thereof shall not be considered a “Person”
and instead the equityholders of such passive holding company or special purpose acquisition vehicle (other than any other passive holding
company or special purpose acquisition vehicle) shall be considered for purposes of the foregoing.
Notwithstanding
the preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not
be deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of
the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted
Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that are part of
such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining
whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued and outstanding
Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to beneficially own the Capital
Stock of another Person as a result of its ownership of the Capital Stock or other securities of such other Person’s parent entity
(or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Capital Stock entitled to vote for the
election of directors or board of managers of such parent entity and (B) such directors or managers elected by the Person or group have
a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
“Charge”
means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial
Term Loans, Amendment No. 2 Term Loans (including, for the avoidance of doubt, Amendment No. 3 Incremental Term Loans), Amendment No.
8 Term Loans (including, for the avoidance of doubt, Amendment No. 9 Incremental Term Loans), other Additional Term Loans of any series
established as a separate “Class” pursuant to Sections 2.22,
2.23 or 9.02(c)(i),
Initial Revolving Loans, Amendment No. 6 Replacement and Incremental Revolving Loans or other Additional Revolving Loans of any series
established as a separate “Class” pursuant to Sections 2.22,
2.23 or 9.02(c)(ii)
or Swingline Loans, (b) any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment, an Amendment No. 2
Term Loan Commitment (including, for the avoidance of doubt,
Amendment No. 3
Incremental Term Loan Commitments), an Amendment No. 8 Term Loan Commitment, an Amendment No. 9 Incremental Term Loan Commitment, another
Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Sections 2.22,
2.23 or 9.02(c)(i),
an Initial Revolving Credit Commitment, an Amendment No. 6 Replacement and Incremental Revolving Credit Commitment or another Additional
Revolving Credit Commitment of any series established as a separate “Class” pursuant to Sections 2.22,
2.23 or 9.02(c)(ii),
(c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers
to whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (or Revolving Loans
incurred or Letters of Credit issued under a Revolving Credit Commitment of a particular Class).
“Closing
Date” means the date on which the conditions specified in Section
4.01 are satisfied (or waived in accordance with Section
9.02), which date is July 3, 2017.
“Closing
Date Material Adverse Effect” shall have the meaning assigned to the term “Company Material Adverse Effect” in
the Acquisition Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined
in the Acquisition Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement as in effect on the Closing
Date).
“CME
Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured
Overnight Financing Rate (SOFR) (or a successor administrator).
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated
Net Income for the cumulative period from the first day of the Fiscal Quarter of the Parent Borrower during which the Closing Date occurred
to and including the last day of the most recently ended Fiscal Quarter of the Parent Borrower prior to such date for which consolidated
financial statements required pursuant to Section 5.01(a)
or (b) have been delivered or, at the Parent
Borrower’s election, are internally available (treated as one accounting period).
“Code”
means the Internal Revenue Code of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Secured
Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset, unless specifically consented
to by the Company.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth
in Section 5.12, the requirement that:
(a) the
Administrative Agent shall have received;
(i) (A)
a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement in
substantially the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements
set forth in this definition pursuant to Section 5.12
owns registrations of or applications for U.S. Patents, U.S. Trademarks and/or U.S. Copyrights that constitute Collateral, an Intellectual
Property Security Agreement in substantially the
form attached
as an exhibit hereto, (D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for
filing in such jurisdictions as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement
in substantially the form attached as an exhibit thereto; and
(ii) each
item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b) the
Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after
the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary
and appropriate (as reasonably determined by the Administrative Agent and the Parent Borrower):
(i) evidence
that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding UCC
or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative
Agent may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the
Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings
have been duly recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided
for in a manner reasonably satisfactory to the Administrative Agent;
(ii) a
fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to the
Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Parent Borrower in
good faith)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to
the Administrative Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein
with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in
the applicable jurisdiction;
(iii) a
customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is
located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may
reasonably request; and
(iv) (A)
appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced
in clause (ii) above.
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the
Obligations evidenced hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above,
then, to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar
tax or charge shall
be calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate Asset and (y)
the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined in a manner
reasonably acceptable to Administrative Agent and the Parent Borrower. Notwithstanding anything herein to the contrary, no Mortgage will
be executed and delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent has
received written notice of such Mortgage at least 15 days prior to such execution and delivery and has confirmed receipt of satisfactory
flood due diligence and evidence of compliance with the applicable Flood Insurance Laws.
“Collateral
Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security
Agreement, (iv) each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant
to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant
to which any Loan Party grants a Lien on any assets as security for payment of the Secured Obligations.
“Commercial
Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course
of business of such Person.
“Commercial
Tort Claim” has the meaning set forth in Article
9 of the UCC.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional
Commitment (including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment, Amendment No. 3 Incremental Term Loan Commitment,
Amendment No. 6 Replacement and Incremental Revolving Credit Commitment, Amendment No. 8 Term Loan Commitment and Amendment No. 9 Incremental
Term Loan Commitment), as applicable, in effect as of such time.
“Commitment
Fee Rate” means, on any date (a) with respect to the Amendment No. 6 Replacement and Incremental Revolving Credit Commitments,
subject to the provisions of the last paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage
Ratio as of the last day of the most recently ended Test Period and (b) with respect to other Additional Revolving Credit Commitments
of any Class, the rate or rates per annum specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension
Amendment.
| First Lien Leverage Ratio |
Commitment Fee Rate |
| Category 1 |
|
| Greater than 4.35 to 1.00 |
0.50% |
| Category 2 |
|
Equal
to or less than 4.35 to 1.00 but
greater than 3.85
to 1.00
|
0.375% |
Category 3
Equal to or less
than 3.85 to 1.00
|
0.25% |
The
Commitment Fee Rate with respect to the Amendment No. 6 Replacement and Incremental Revolving Credit Commitment shall be adjusted quarterly
on a prospective basis on each Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above;
provided that (a)
until the first
Adjustment Date following the completion of at least one full Fiscal Quarter after the Amendment No. 6 Effective Date, the Commitment
Fee Rate shall be the applicable rate per annum set forth above in Category 1 and (b) if financial statements are not delivered when
required pursuant to Section 5.01(a) or (b),
as applicable, the Commitment Fee Rate shall be the rate per annum set forth above in Category 1 until such financial statements are
delivered in compliance with Section 5.01(a) or
(b), as applicable.
“Commitment
Letter” means that certain Amended and Restated Commitment Letter, dated as of June 15, 2017, by and among, inter alios,
Parent and the Arrangers, as amended to date.
“Commitment
Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company
Competitor” means any competitor of the Parent Borrower and/or any of its subsidiaries and/or the Target and/or any of its
subsidiaries.
“Compliance
Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential
Information” has the meaning assigned to such term in Section
9.13.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication,
of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii),
(xiv), (xix), (xx), (xxi) and (xxii) below) the amounts of:
(i) Consolidated
Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder, (B) other
bank, administrative agency (or trustee) and financing fees (including rating agency fees and other fees in respect of any Second Lien
Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed) and (D)
commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees, bankers’
acceptances or any similar facilities or financing and hedging agreements);
(ii) (A)
Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar Taxes,
property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related to any
such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax distribution)
of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes permitted to be
made hereunder;
(iii) (A)
depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv) any
non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the case
of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash Charge
represents an accrual or reserve for potential Cash items in any
future
period, such Person may determine not to add back such non-Cash Charge in the then-current period);
(v) [reserved];
(vi) Receivables
Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary in
connection with a Receivables Facility;
(vii) the
amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management companies) (or prior
to the Closing Date, the Existing Sponsor and/or its Affiliates or management companies) for any financial advisory, consulting, financing,
underwriting or placement services or in respect of other investment banking activities and other transaction fees, and payments to outside
directors of the Parent Borrower or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries;
provided that such payment is permitted under this Agreement;
(viii) [reserved];
(ix) the
amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation or
otherwise) incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date and
(C) any acquisition or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable period;
(x) pro
forma “run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively, “Expected
Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually supportable and projected by
the Parent Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have been taken
or are expected to be taken (in the good faith determination of such Person) or (2) that have been identified to the Administrative Agent
prior to the Closing Date (including by inclusion in the Acquisition Agreement or the model and quality of earnings summaries delivered
to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary)
related to (A) the Transactions and (B) any permitted asset sale, acquisition (including the commencement of activities constituting
a business line), combination, Investment, Disposition (including the termination or discontinuance of activities constituting a business
line), operating improvement, restructuring, cost savings initiative, any similar initiative (including the effect of increased pricing
in customer contracts) and/or specified transaction, in each case prior to, on or after the Closing Date (any such operating improvement,
restructuring, cost savings initiative or similar initiative or specified transaction, a “Cost Saving Initiative”)
(in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Savings Initiative had been realized
in full on the first day of such period); provided, that the results of such Expected Cost Savings and/or Cost Saving Initiatives
are projected by the Parent Borrower in good faith to result from actions that have been taken or with respect to which steps have been
taken or are expected to be taken (in the good faith determination of the Parent Borrower) within 24 months after (i) with respect to
the Transactions, the Closing Date and (ii) with
respect
to any Cost Savings Initiative, the date of any such operating improvement, restructuring, cost savings initiative or similar initiative
or specified transaction;
(xi)
Charges attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives
(including Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives
and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning
or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including the following:
any inventory optimization program and/or any curtailment, any business optimization Charge, any restructuring Charge (including any
Charge relating to any tax restructuring), any Charge relating to the closure or consolidation of any office or facility (including but
not limited to rent termination costs, moving costs and legal costs), any systems implementation Charge, any severance Charge, any one
time compensation Charge, any Charge relating to entry into a new market, any Charge relating to rights fee arrangements (including any
early terminations thereof), any Charge relating to any strategic initiative or contract, any signing Charge, any Charge relating to
any entry into new markets and contracts (including, without limitation, any renewals, extensions or other modifications thereof) or
exiting a market or contract, any retention or completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion
and/or relocation Charge, any Charge associated with any modification or curtailment to any pension and post-retirement employee benefit
plan, any software or other intellectual property development Charge, any Charge associated with new systems design, any implementation
Charge, any transition Charge, any Charge associated with improvements to IT or accounting functions, losses related to temporary decreases
in work volume and expenses related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused
warehouse space, any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that,
in the case of any such Charge, the results of any such action relating to such Charge are projected by the Parent Borrower in good faith
to be achieved within 24 months of the undertaking thereof;
(xii) any
Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has submitted
in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under its relevant
insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back
to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a prior
period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable
by a third party (whether or not then realized so long as the Parent Borrower in good faith expects to receive proceeds arising out of
such indemnification, insurance or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount
received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received
may be carried forward and applied against any expense in any future period);
(xiii) unrealized
net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv) the
amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced Cash
expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain relating
to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause (c)(i)
below for any previous period and not added back;
(xv) the
amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi) any
net Charges included in the Parent Borrower’s consolidated financial statements due to the application of Accounting Standards
Codification Topic 810 (“ASC 810”);
(xvii) the
amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests of
third parties in any non-wholly owned Restricted Subsidiary;
(xviii) the
amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including any
construction, pre-opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has been
open (or renovated) and operating for a period of 18 consecutive months;
(xix) the
amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not included
in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated Adjusted
EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually recognized;
(xx) any
other adjustments, exclusions and add-backs (x) reflected in the model and quality of earnings summaries delivered to the Arrangers on
or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary) or (y) that are consistent
with Regulation S-X;
(xxi) for
the first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation
and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least
18 months (as determined by the Parent Borrower in good faith); provided that the aggregate amount added-back to Consolidated
Adjusted EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any
period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs;
and
(xxii)
for the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been
in operation post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar
facilities that have been in operation for a period of at least 18 months (as determined by the Parent Borrower in
good faith);
provided that the aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and
this clause (xxii) (on an aggregate basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA
for such period, calculated prior to giving effect to such add-backs;
minus (c)
without duplication, to the extent such amounts increase Consolidated Net Income:
(i) non-Cash
gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of potential
Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii) unrealized
net gains in the fair market value of any arrangements under Hedge Agreements;
(iii) [reserved];
(iv) the
amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v) to
the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv)
above, the cash payment in respect thereof in the relevant future period;
(vi) the
excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii) any
Consolidated Net Income included in the Parent Borrower’s consolidated financial statements due to the application of ASC 810;
and
(viii)
the amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(d) increased
or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification
Topic 460 or any comparable regulation.
Notwithstanding
anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage Ratio,
the Interest Coverage Ratio and the Secured Leverage Ratio and/or the amount of any basket based on a percentage of Consolidated Adjusted
EBITDA for any period that includes the Fiscal Quarters ended July 3, 2016, October 2, 2016, January 1, 2017 and April 2, 2017, Consolidated
Adjusted EBITDA for such Fiscal Quarters shall be deemed to be $15,194,992, $34,765,574, $9,482,738 and $58,534,750 (which amounts are
agreed not to include adjustments pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above), respectively,
in each case, as adjusted (i) on a Pro Forma Basis, as applicable and (ii) pursuant to clauses (b)(x), (b)(xx), (b)(xxi)
and (b)(xxii) above, as applicable for each Test Period.
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral; provided that, for the avoidance of doubt, “Consolidated First Lien Debt” shall be calculated
after applying or excluding (as applicable) the Netted Amounts.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without duplication),
amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance or similar
bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred payment obligation,
commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Facility,
the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest expense under GAAP), any
commission, discount and/or other fee or charge owed with respect to any letter of credit, bank guarantee and/or bankers’ acceptance
or any similar facilities, any fee and/or expense paid to the Administrative Agent in connection with its services hereunder, any other
bank, administrative agency (or trustee) and/or financing fee and any cost associated with any surety bond in connection with financing
activities (whether amortized or immediately expensed)), plus (b) any cash dividend paid or payable in respect of Disqualified
Capital Stock during such period other than to such Person or any Loan Party, plus (c) any net losses, obligations or payments
arising from or under any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such
Person or its subsidiaries, in each case determined on a consolidated basis for such period. For purposes of this definition, interest
in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of
interest implicit in such Capital Lease in accordance with GAAP.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a) (i)
any net income (loss) of any Person if such Person is not the Parent Borrower or a Restricted Subsidiary, except that Consolidated Net
Income will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into
Cash or Cash Equivalents) by such Person to the Parent Borrower or any other Restricted Subsidiary (subject, in the case of any such
Restricted Subsidiary that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose
of determining the amount available for Restricted Payments under Section
6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any Restricted Subsidiary (other than a Loan Party) if
such Restricted Subsidiary is subject to restrictions on the payment of dividends or the making of distributions by such Restricted Subsidiary,
directly or indirectly, to the Parent Borrower or a Loan Party by operation of its organizational documents or any agreement, instrument,
judgment, decree, order, statute or governmental rule or regulation applicable thereto (other than (x) any restriction that has been
waived or otherwise released and (y) any restriction set forth in the Loan Documents, the documents related to any Incremental Equivalent
Debt, the documents relating to any Second Lien Facility and the documents relating to any Replacement Debt or Refinancing Indebtedness
in respect of any of the foregoing), except that Consolidated Net Income will be increased by the amount of dividends, distributions
or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash Equivalents) by the Restricted Subsidiary (subject,
in the case of a dividend, distribution or other payment to another Restricted Subsidiary, to the limitations in this clause (ii));
(b) any
gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or of
returned or surplus assets, in each case, outside the ordinary course of business (as determined in good faith by such Person);
(c) (i)
any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d) (i)
any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency
re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with
the above or any other currency related risk, any gains or Charges relating to translation of asset and liabilities denominated in a
foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x)
any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to,
in the case of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives
and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related
to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge
transactions, in respect of Hedge Agreements;
(e) any
net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other than,
at the option of the Parent Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination
thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of the Parent Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof)
and/or (iii) any facility that has been closed during such period;
(f) any
net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of Indebtedness
or (ii) any Derivative Transaction;
(g) (i)
any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to be
paid by the Parent Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or employee
benefit plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or shareholders agreement
or any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii)
any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company,
the Parent Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge
is funded with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of
Capital Stock (other than Disqualified Capital Stock) of the Subject Person and (iii) the amount of payments made to optionholders of
such Person or any Parent Company in connection with, or as a result of, any distribution being made to equityholders of such Person
or its Parent Companies, which payments are being made to compensate such optionholders as though they were equityholders at the time
of, and entitled to share in, such distribution, in each case to the extent permitted hereunder;
(h) any
Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required to
be established, adjusted or incurred, as
applicable,
as a result of the Transactions in accordance with GAAP, (ii) within 12 months after the closing of any other acquisition that is required
to be established, adjusted or incurred, as applicable, as a result of such acquisition in accordance with GAAP or (iii) as a result
of any change in, or the adoption or modification of, accounting principles or policies;
(i) any
(A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly in
connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs and
(C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt issuance
costs, commissions and expenses and other intangible assets);
(j) (A)
the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in component
amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease, rights fee arrangements,
software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced billing and debt line items thereof),
resulting from the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to the Transactions
or any consummated acquisition or similar Investment or the amortization or write-off of any amounts thereof (including any write-off
of in process research and development) and/or (B) the cumulative effect of any change in accounting principles or policies (effected
by way of either a cumulative effect adjustment or as a retroactive application, in each case, in accordance with GAAP) (except that,
if the Parent Borrower determines in good faith that the cumulative effects thereof are not material to the interests of the Lenders,
the effects of any change in any such principles or policies may be included in any subsequent period after the Fiscal Quarter in which
such change, adoption or modification was made);
(k) the
income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person or
is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such other
Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent required
for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section
1.04);
(l) any
deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release
of any valuation allowance related to any such item;
(m) [reserved];
(n) earn-out,
non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price adjustments, including in respect of any acquisition consummated prior to the Closing Date;
(o) [reserved];
(p) (A)
Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation,
becoming
a standalone company, any option buyout or any repayment, redemption, refinancing, amendment or modification of Indebtedness (including
any amortization or write-off of debt issuance or deferred financing costs, premiums and prepayment penalties) or any similar transaction,
and/or (2) in connection with the merger of Isos Acquisition Corporation and Bowlero Corp. on December 15, 2021 and the other transactions
consummated in connection therewith, (C) the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant
to indemnification or reimbursement provisions or similar agreements or insurance (it being understood that if the amount received in
cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received may be
carried forward and applied against any expense in any future period); provided that in respect of any reimbursable Charge that
is added back in reliance on clause (C) above, such relevant Person in good faith expects to receive reimbursement for such Charge
within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not
so reimbursed within the next four Fiscal Quarters) and/or (D) Public Company Costs;
(q) non-cash
Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including in
connection with (A) the Transactions, the Amendment No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 8 Transactions
and/or any acquisition consummated after the Closing Date (including legal, accounting and other professional fees and expenses incurred
in connection with acquisitions and other Investments made prior to the Closing Date), (B) the closing, consolidation or reconfiguration
of any facility during such period or (C) one-time consulting costs;
(r) non-cash
compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement (including
any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including any repricing,
amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right, profits interest
or similar arrangement or the vesting of any warrant); and
(s) to
the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during
such period.
In
addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated
Net Income will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period
that such proceeds are intended to replace (whether or not received so long as the Parent Borrower in good faith expects to receive such
proceeds within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent
not so received within the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral; provided that, for the avoidance of doubt, “Consolidated Secured Debt” shall be calculated after applying
or excluding (as applicable) the Netted Amounts.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (excluding, for the avoidance of doubt, all undrawn letters of credit and all Attributable Debt or other Capital Lease
Obligations) as reflected on a balance sheet of such Person prepared in accordance with GAAP; provided that “Consolidated
Total Debt” shall be calculated (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or
indebtedness of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in
trust or escrow the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability
or indebtedness, and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited
are not included in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction, any
Qualified Receivables Facility, or under any Indebtedness that is non-recourse to the Parent Borrower and its Restricted Subsidiaries
and (iv) to exclude any Excluded Property Transaction (items (i) through (iv) of this proviso, the “Netted Amounts”).
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end
of such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets
and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give
effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any
Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Convertible
Indebtedness” means Indebtedness of Holdings, the Parent Borrower or any Parent Company (which may be guaranteed by Holdings
and/or any Subsidiary) permitted to be incurred hereunder that is either (a) convertible into or exchangeable for Qualified Capital Stock
of Holdings, the Parent Borrower or any Parent Company (and cash in lieu of fractional shares) and/or cash (in an amount determined by
reference to the price of such Qualified Capital Stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially
equivalent derivative transactions) that are exercisable for Qualified Capital Stock of the Holdings, the Parent Borrower or any Parent
Company and/or cash (in an amount determined by reference to the price of such Qualified Capital Stock).
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past
or future infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing;
and (e) all rights corresponding to any of the foregoing.
“Corresponding
Tenor” means, with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment
period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Covered
Affiliate” has the meaning assigned to such term in Section
9.02(g)(i).
“Credit
Extension” means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification,
renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase
the Stated Amount of the relevant Letter of Credit).
“Credit
Facilities” means the Revolving Facility and the Term Facility.
“Credit
Suisse” has the meaning assigned to such term in the preamble to this Agreement.
“Cure
Amount” has the meaning assigned to such term in Section
6.15(b).
“Cure
Right” has the meaning assigned to such term in Section
6.15(b).
“Current
Assets” means, at any date, all assets of the Parent Borrower and its Restricted Subsidiaries which under GAAP would be classified
as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties
by the Parent Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative
financial instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) assets held for sale
or pension assets).
“Current
Liabilities” means, at any date, all liabilities of the Parent Borrower and its Restricted Subsidiaries which under GAAP would
be classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans
and letter of credit exposures, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is
due and unpaid), (iv) obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion
of current and deferred Taxes, (vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves,
(viii) liabilities in respect of funds of third parties on deposit with the Parent Borrower and/or any Restricted Subsidiary, (ix) the
current portion of any Capital Lease, (x) any liabilities recorded in connection with stock based awards, partnership interest based
awards, awards of profits interests, deferred compensation awards and similar initiative based compensation awards or arrangements and
(xi) the current portion of any other long term liability for borrowed money.
“Daily
Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day,
a “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate
Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities
Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published
by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be
effective from and including the effective date of such change in SOFR without notice to the Parent Borrower.
“Debt
Fund Affiliate” means any Affiliate (other than a natural person) of any Investor that is a bona fide debt fund or investment
vehicle that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the
U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined
Proceeds” has the meaning assigned to such term in Section
2.11(b)(v).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to make
a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of Credit or
Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such Loan, Letter
of Credit or Swingline Loan was required to be made or funded, (b) notified the Administrative Agent, any Issuing Bank or the Swingline
Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend
credit generally (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed,
within two Business Days after the request of Administrative Agent or the Parent Borrower, to confirm in writing that it will comply
with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters
of Credit and Swingline Loans; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon receipt of such written confirmation by the Administrative Agent, (d) become (or any parent company thereof has become)
insolvent or been determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent,
or the assets or management of which has been taken over by any Governmental Authority, (e) become (or any parent company thereof has
become) the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for
the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it,
or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment,
unless in the case of any Lender subject to this clause (e), the Parent Borrower and the Administrative Agent shall each have
determined that such Lender intends, and has all approvals required to enable it (in form and substance satisfactory to each of the Parent
Borrower and the Administrative Agent), to continue to perform its obligations as a Lender hereunder or (f) become (or any parent company
thereof has become) the subject of a Bail-In Action; provided that no Lender shall be deemed to be a Defaulting Lender solely
by virtue of the ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided
that such action does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from
the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,
disavow or disaffirm any contract or agreement to which such Lender is a party.
“Delaware
Divided LLC” means any Delaware LLC formed upon the consummation of a Delaware LLC Division.
“Delaware
LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware
LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of
the Delaware Limited Liability Company Act.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency
interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that
gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option,
any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity
(including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked
contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that, (i) no phantom
stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees,
members of management, managers or consultants of the Parent Borrower or its subsidiaries shall constitute a Derivative Transaction and
(ii) no Packaged Right, Permitted Bond Hedge Transaction or Permitted Warrant Transaction shall, in each case, constitute a Derivative
Transaction.
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Parent Borrower in good faith) of non-Cash consideration
received by the Parent Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section
6.07(h) and/or Section 6.08 that is designated
as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Parent Borrower, setting forth the basis
of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with a subsequent sale
or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount
Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease or other disposition of any property of any Person, including any disposition
of property to a Delaware Divided LLC pursuant to a Delaware LLC Division. The fair market value of any assets or other property Disposed
of shall be determined by the Parent Borrower in good faith.
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, prior
to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption
is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued
shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i)
debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to 91
days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase obligation or
any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, which
may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood
that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following such Latest Maturity
Date at the time such Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments
of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided
that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or
the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the
issuer thereof to redeem such Capital Stock upon the occurrence of any change of control or any Disposition occurring prior to 91 days
following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if such Capital
Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the Termination Date.
Notwithstanding
the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members
of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or
consultants, in each case in the ordinary course of business of Holdings, the Parent Borrower or any Restricted Subsidiary, such Capital
Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order
to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee shall be considered
Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement,
stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or
similar agreement that may be in effect from time to time.
Notwithstanding
the foregoing, in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of
Law to be issued in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified
Institution” means:
(a)
(i) any Person identified as such in writing to the Administrative Agent on January 26, 2023 by way of email from the Parent Borrower
(or its attorneys on such date), (ii) any Person identified as such by the Parent Borrower in writing after January 26, 2023 (and reasonably
satisfactory) to the Administrative Agent, (iii) any Affiliate of any Person described in clauses (i) or (ii) above that
is clearly identifiable as an Affiliate of such Person on the basis of such Affiliate’s name and (iv) any other Affiliate of any
Person described in clauses (i) or (ii) above that is identified by the Parent Borrower in a written notice to the Arrangers
(if prior to the Closing Date) or the Administrative Agent (if after the Closing Date) (other than Bona Fide Debt Funds other than such
Bona Fide Debt Funds excluded pursuant to clause (a)(i) or (a)(ii) of this paragraph) (each such person described in clauses
(i) through (iv) above, a “Disqualified Lending Institution”);
(b)
(i) any Person that is a Company Competitor and/or any Affiliate of any Company Competitor (other than any Affiliate that is a
Bona Fide Debt Fund) and is identified by the Parent Borrower as such in writing to the Arrangers (if prior to the Closing Date) or the
Administrative Agent (if after the Closing Date), (ii) any Affiliate of any Person described in clause (i) above (other than any
Affiliate that is a Bona Fide Debt Fund) that is clearly identifiable as an Affiliate of such person on the basis of such Affiliate’s
name and (iii) any other Affiliate of any Person described in
clause
(i) above that is identified by the Parent Borrower in a written notice to the Arrangers (if prior to the Closing Date) or to the
Administrative Agent (if after the Closing Date) (it being understood and agreed that no Bona Fide Debt Fund may be designated as a Disqualified
Institution pursuant to this clause (iii), but such Bona Fide Debt Fund may be designated as a Disqualified Lending Institution
pursuant to clause (a) above); and
(c)
any Affiliate or Representative of any Arranger and/or any Initial Lender that is engaged as a principal primarily in mezzanine
financing or venture capital;
it
being understood and agreed that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i) and/or
(b)(iii) above shall apply retroactively to disqualify any Person that has previously acquired an assignment or participation
interest in any Loans if such Person was not a Disqualified Institution at the time of acquisition of such assignment or participation
interest.
“Disqualified
Lending Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disregarded
Domestic Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness
of one or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets
related thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars”
or “$” refers to lawful money of the U.S.
“Domestic
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the
District of Columbia.
“Dutch
Auction” means an auction (an “Auction”) conducted by any Affiliated Lender or any Debt Fund Affiliate (any
such Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance
with the following procedures (as may be modified by such Affiliated Lender or Debt Fund Affiliate (as applicable) and the applicable
“auction agent” in connection with a particular Auction transaction); provided that no Auction Party shall initiate
any Auction unless (I) at least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant
to an Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed Auction (or equivalent)
which was withdrawn:
(a) Notice
Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution to
the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction
Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of
the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess thereof (or, in
any case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and
the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify the discount
to par (which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans subject
to such Auction), that represents the range of purchase prices that the Auction Party would be willing to accept in the Auction, (iii)
be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to any Term Loan on
an individual Class basis and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly provide each
appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be submitted by a responding Lender to the Auction
Agent
(or its
delegate) by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as the Auction Party may agree with
the reasonable consent of the Auction Agent) (the “Auction Response Date”).
(b) Reply
Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in its sole
discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return Bid”)
which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must be expressed
as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”), which (when
expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount Range and (ii) a principal amount
of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of such Lender
then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”). Lenders may
only submit one Return Bid per Auction, but each Return Bid may contain up to three bids only one of which may result in a Qualifying
Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction Agent, an
Assignment and Assumption with the dollar amount of the Term Loans to be assigned to be left in blank, which amount shall be completed
by the Auction Agent in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause (c) below.
Any Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to have declined to participate
in the relevant Auction with respect to all of its Term Loans.
(c) Acceptance
Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction Response Date,
the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable Price”)
for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction Amount; provided
that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase of the entire Auction
Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election, (i) withdraw the Auction
or (ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The Auction Party shall purchase the relevant Term
Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than the Applicable Price (“Qualifying
Bids”) at the Applicable Price; provided that if the aggregate proceeds required to purchase all Term Loans subject
to Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase such Term Loans at the Applicable
Price ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Auction Agent
in its discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply Prices, only the bid with the
lowest Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying Bid of such Lender (e.g., a
Reply Price of $100 with a discount to par of 1%, when compared to an Applicable Price of $100 with a 2% discount to par, will not be
deemed to be a Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would be deemed to be a Qualifying
Bid). The Auction Agent shall promptly, and in any case within five Business Days following the Auction Response Date with respect to
an Auction, notify (I) the Parent Borrower of the respective Lenders’ responses to such solicitation, the effective date of the
purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and the tranches
thereof to be purchased pursuant to such Auction, (II) each participating Lender of the effective date of the purchase of Term Loans
pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the tranches of Term Loans to be purchased at
the Applicable Price on such date, (III) each participating Lender of the aggregate principal amount and the tranches of the Term Loans
of such Lender to be
purchased
at the Applicable Price on such date and (IV) if applicable, each participating Lender of any rounding and/or proration pursuant to the
second preceding sentence. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Parent Borrower
and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d) Additional
Procedures.
(i) Once
initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will
be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii) To
the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to procedures
consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and as reasonably
agreed by the Parent Borrower.
(iii) In
connection with any Auction, the Parent Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition
to any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction
Party and the Auction Agent.
(iv) Notwithstanding
anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required to be delivered
or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its
delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication
actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business
Day.
(v) The
Parent Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition
by itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to
such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement
shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided
for in this definition as well as activities of the Auction Agent.
“EAP
Substitution” has the meaning assigned to such term in the Carlyle Sale/Leaseback Documents.
“EAP
Substitution Property” means any property that is the subject of an EAP Substitution.
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its
parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF
Prepayment Amount” has the meaning assigned to such term in Section
2.11(b)(i).
“Effective
Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation
with the Parent Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins,
(b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest
rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed
four-year average life to maturity or lesser remaining average life to maturity), but excluding (i) any advisory, arrangement, commitment,
consent, structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar fees payable in connection
therewith (regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that
is not paid directly by a Borrower generally to all relevant lenders ratably (or, if only one lender (or affiliated group of lenders)
is providing such Indebtedness, are fees of the type not customarily shared with lenders generally); provided, that with respect
to any Indebtedness that includes a “SOFR floor” or “Base Rate floor”, that (A) to the extent that the Term SOFR
Reference Rate (for an Interest Period of three months) or Alternate Base Rate (in each case without giving effect to any floor specified
in the definition thereof on the date on which the Effective Yield is being calculated) is less than such floor, the amount of such difference
will be deemed added to the interest rate margin applicable to such Indebtedness for purposes of calculating the Effective Yield and
(B) to the extent that the Term SOFR Reference Rate (for an Interest Period of three months) or Alternate Base Rate (in each case, without
giving effect to any floor specified in the definitions thereof) is greater than such floor, the floor will be disregarded in calculating
the Effective Yield.
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any fund
that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate
of any Lender, (d) any Approved Fund of any Lender or (e) to the extent permitted under Section
9.05(g) or with respect to the Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, any Affiliated Lender or
any Debt Fund Affiliate; provided that in any event, “Eligible Assignee” shall not include (i) any natural person,
(ii) any Disqualified Institution or Defaulting Lender or (iii) except as permitted under Section
9.05(g) or except with respect to the Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, any Borrower or
any of its Affiliates.
“Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such
plan is subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, the Parent Borrower
or any of its Subsidiaries.
“Environmental
Claim” means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order, decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant
to or in connection with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous
Materials Activity.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes, ordinances,
orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements of Governmental
Authorities or the common law relating to (a) pollution or the protection of the environment or natural resources, human health and safety
(to the extent relating to the exposure to any hazardous material) or other environmental matters; or (b) any Hazardous Materials Activity
or any exposure of any Person to any hazardous material.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Parent Borrower or any Restricted Subsidiary directly or indirectly resulting from or based
upon (a) any actual or alleged violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous
Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other
legally binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity
Contribution” has the meaning assigned to such term in the Recitals to this Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within
the meaning of Section 414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that
Person is a member.
“ERISA
Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the 30-day notice period has been waived); (b) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for or receipt of a minimum
funding waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non-exempt prohibited transaction within
the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (f) the withdrawal by the Parent Borrower, any of its Restricted Subsidiaries or any
of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension
Plan resulting in liability to the Parent Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant
to Section 4063 or 4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to terminate any Pension Plan; (h) the imposition
of liability on the Parent Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (i) a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) of the Parent Borrower, any of its Restricted Subsidiaries or any of their respective ERISA
Affiliates from any Multiemployer Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Parent
Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it
is insolvent pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
or (j) the incurrence of liability or the imposition of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with
respect to any Pension Plan.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event
of Default” has the meaning assigned to such term in Article
7.
“Excess
Cash Flow” means, for any Excess Cash Flow Period, an amount (if positive) equal to:
(a) the
sum, without duplication, of the amounts for such period of the following:
(i) Consolidated
Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii) the
Consolidated Working Capital Adjustment for such period, plus
(iii) cash
gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated
Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to the extent such gains
consist of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof or Net Insurance/Condemnation
Proceeds subject to Section 2.11(b)(ii)), plus
(iv) to
the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the Parent
Borrower or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause
(b)(vii) below, minus
(b) the
sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv),
(b)(x), (b)(xi), (b)(xiii) and (b)(xiv), at the option of the Parent Borrower, amounts after such period
to the extent paid prior to the date of the applicable Excess Cash Flow payment) of the following:
(i) the
aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of Indebtedness that
is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section
2.11(b)(i) or (B) revolving Indebtedness except to the extent any related commitment is permanently reduced in connection with such
repayment), (ii) all mandatory prepayments and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole
or penalty payments actually paid in Cash by the Parent Borrower and/or any Restricted Subsidiary that are or were required to be made
in connection with any prepayment of Indebtedness, in each case, except to the extent financed with long-term funded Indebtedness (other
than revolving Indebtedness), plus
(ii) [reserved],
plus
(iii) Consolidated
Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative Agent in connection
with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and
other fees in respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized
or immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters
of credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and Hedge Agreements), plus
(iv) Taxes
(including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions
for Taxes,
to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v) [reserved],
plus
(vi) any
foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii) amounts
added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi) or (b)(xxii) of
the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition of Consolidated Net Income
with respect to business interruption insurance, in each case to the extent such amounts have not yet been received by the Parent Borrower
or its Restricted Subsidiaries, plus
(viii) an
amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix) [reserved],
plus
(x) to
the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in calculating
Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Parent Borrower and its Restricted Subsidiaries
during such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi) Cash
payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the
accrual of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior
period (provided there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except
to the extent financed with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii) [reserved],
plus
(xiii) amounts
paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such period
on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in
a prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back to,
or not deducted from, Consolidated Net Income, plus
(xiv) the
amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term asset,
plus
(xv) the
amount of any Tax obligation of the Parent Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Parent Borrower
as due and payable (but is not currently due and payable) by the Parent Borrower and/or any Restricted Subsidiary as a result of the
repatriation of any dividend or similar distribution of net income of any Foreign Subsidiary to the Parent Borrower and/or any Restricted
Subsidiary, plus
(xvi) to
the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Parent Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii) the
aggregate amount of any extraordinary, unusual, special or non-recurring cash Charges paid or payable during such period (whether or
not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any component
definition used therein) for such period, plus
(xviii) to
the extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Parent Borrower or any Restricted
Subsidiary pursuant to any Excluded Property Transaction or any Sale and Lease-Back Transaction.
“Excess
Cash Flow Period” means each full Fiscal Year of the Parent Borrower ending after the Closing Date (commencing, for the avoidance
of doubt, with the Fiscal Year ending on or about June 30, 2018).
“Exchange
Act” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded
Assets” means each of the following:
(a) any
asset (including any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any property
or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement or, in
the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the Loan Party
of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction in favor
of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or assets of the
relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument,
lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision)
(there being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any Person that is not also a
Loan Party) or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or obligations of the relevant Loan
Party or Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Loan Party or any subsidiary of
the Parent Borrower to take any action materially adverse to the interests of such subsidiary or Loan Party; provided, however,
that any such asset will only constitute an Excluded Asset under clause (i), clause (ii) or clause (iii) above to
the extent such violation or breach, termination (or right of termination), default or right to amend would not be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction
or any other applicable Requirement of Law; provided, further, that any such asset shall cease to constitute an Excluded
Asset at such time as the condition causing such violation, breach, termination (or right
of termination)
or default or right to amend or require other actions no longer exists and to the extent severable, the security interest granted under
the applicable Collateral Document shall attach immediately to any portion of such General Intangible or other right that does not result
in any of the consequences specified in clauses (i) through (iii) above,
(b) the
Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit
subsidiary and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c) any
(i) foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of Use”,
“Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and solely during the
period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or result in the voiding
of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d) any
asset or property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental
or regulatory consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent,
approval, license or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation,
no requirement to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable
Requirements of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this
clause (B), to the extent such prohibition would be rendered ineffective under applicable anti-assignment provisions of the UCC
of any relevant jurisdiction notwithstanding such prohibition, (C) trigger termination of any contract pursuant to a “change of
control” or similar provision or (D) result in adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Parent Borrower in good faith following consultation with the Administrative Agent,
(e) (i)
except to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement,
any leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Parent Borrower or any of its Subsidiaries
and later deeded or conveyed to the Parent Borrower or any other Loan Party, (iv) any real property (including improvements) or real
property interest (including improvements) owned by a Loan Party immediately prior to the Closing Date and not required to be subject
to a mortgage or security interest pursuant to the terms of the Existing Credit Facilities (including the real property (and improvements
thereto) set forth on Schedule 1.01(e) hereto) or the terms hereunder and (v) any Excluded Property,
(f) any
Capital Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g) any
Margin Stock,
(h) the
voting Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a) of
the Code) or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary
or Disregarded Domestic Subsidiary, as applicable,
(i) any
Letter-of-Credit-Right (other than to the extent a security interest in such Letter-of-Credit-Right can be perfected by filing an “all-assets”
UCC financing statement, without need for any other action) and all Commercial Tort Claims,
(j) any
Cash or Cash Equivalents (other than Cash and Cash Equivalents representing identifiable proceeds of other Collateral, a security interest
in which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or arises by
law (including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof),
(k)
any Deposit Account or commodity or securities account (including any securities entitlement
and any related asset) (except to the extent a security interest therein can be perfected through the filing of an “all assets”
UCC financing statement (without need for any other action); it being understood that Cash and Cash Equivalents representing identifiable
proceeds of other Collateral as referred to in the preceding clause (j) are not excluded hereby, and shall constitute Collateral
(but any other Cash or Cash Equivalents shall not constitute Collateral), but there shall be no requirement for any control agreement
(or similar agreement)),
(l) any
motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can be
perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m) any
governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting
of a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however,
that any such asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction
would not be rendered ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
(n) Receivables
Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred or sold
in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o) any
asset with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden,
difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the
ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the
relevant Secured Parties afforded thereby, and
(p) any
league deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
“Excluded
Lender” has the meaning assigned to such term in Section
9.02(g)(ii).
“Excluded
Property” means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(f) hereto, any EAP Substitution
Property, any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property
purchased with the proceeds of a Disposition of any of the foregoing.
“Excluded
Property Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an
Excluded Property that constitutes Limited Recourse Financing with respect to the Parent Borrower or any Subsidiary.
“Excluded
Property Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Parent Borrower or any Subsidiary after the date hereof in connection with any
Excluded Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time to time hereafter
in accordance with the provisions thereof, and including all basic financing information and all other agreements, documents and instruments
relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the foregoing.
“Excluded
Property Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties
effected after the date hereof, including any amendment or modification of the Carlyle Sale/Leaseback or the Carlyle Sale/Leaseback 2014.
“Excluded
Property Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Parent Borrower or any Subsidiary after the date hereof in connection with any
Excluded Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to time hereafter
in accordance with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments
relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded
Property Transaction” means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded
Property Transaction Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property
Limited Recourse Financing Documents.
“Excluded
Subsidiary” means:
(a) any
Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b) any
Immaterial Subsidiary,
(c) any
Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan Guaranty
or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide a Loan
Guaranty (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance
or similar legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have
no obligation to obtain any such consent, approval, license or authorization,
(d) any
not-for-profit subsidiary,
(e) any
Captive Insurance Subsidiary or subsidiary that is a broker-dealer,
(f) any
special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing,
or established in connection with any Excluded Property Transaction) and any Receivables Subsidiary,
(g) any
Foreign Subsidiary,
(h) (i)
any Disregarded Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary
or any Disregarded Domestic Subsidiary,
(i) any
Unrestricted Subsidiary,
(j) any
subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured Indebtedness
not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that guarantees
such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from becoming a
Guarantor,
(k) [reserved],
(l) any
Restricted Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Parent Borrower in good faith, and
(m) any
other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Parent Borrower, the
burden or cost of providing a Loan Guaranty outweighs the benefits afforded thereby.
“Excluded
Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the Loan Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any
Loan Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures
Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder
(determined after giving effect to Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement
for the benefit of such Loan Party) at the time the Loan Guaranty of such Loan Party or the grant of such security interest becomes effective
with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion
shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest
is or becomes illegal.
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient of any payment to
be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise
Taxes (i) by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch profits
taxes imposed by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the case of a Lender,
any U.S. withholding tax that is imposed on amounts payable to such Lender at the time such Lender acquires an interest in a Loan or
Commitment (or designates a new lending office), except (i) pursuant to an assignment or designation of a new lending office under Section
2.19 and (ii) to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section
2.17, (d) any tax imposed as a result of a failure by the Administrative Agent or any Lender or Issuing Bank to comply with Section
2.17(f) and (e) any withholding tax under FATCA.
“Existing
Credit Facilities” has the meaning assigned to such term in Section
4.01(h).
“Existing
Letter of Credit” means in respect of the Initial Revolving Facility, each letter of credit set forth on Schedule 1.01(b).
“Existing
Letter of Credit Issuer” means each Lender or Affiliate of a Lender that issued an Existing Letter of Credit.
“Existing
Sponsor” means Cerberus Capital Management, L.P. and its respective Affiliates.
“Expected
Cost Savings” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended
Revolving Credit Commitment” has the meaning assigned to such term in Section
2.23(a).
“Extended
Revolving Loans” has the meaning assigned to such term in Section
2.23(a).
“Extended
Term Loans” has the meaning assigned to such term in Section
2.23(a)(ii).
“Extension”
has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent
required by Section 2.23) and the Parent Borrower,
executed by each of (a) the Parent Borrower, (b) the Administrative Agent and (c) each Lender that has accepted the applicable Extension
Offer pursuant hereto and in accordance with Section
2.23.
“Extension
Offer” has the meaning assigned to such term in Section
2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6,
heretofore owned, leased, operated or used by the Parent Borrower or any of its Restricted Subsidiaries or any of their respective predecessors
or Affiliates.
“Failed
Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rules, practice or other published administrative
guidance adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such section of the
Code.
“Federal
Assignment of Claims Act” means the Federal Assignment of Claims Act (41 U.S.C. § 15).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth
on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as
the
federal funds effective
rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective Rate at such time shall
instead be zero.
“Fee
Letter” means that certain Amended and Restated Fee Letter, dated as of June 15, 2017, by and among, inter alios, Parent
and the Arrangers, as amended to date.
“Financial
Covenant” means the covenant in the first sentence of Section
6.15(a).
“First
Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“First Lien Leverage Ratio” is used in this Agreement, in each case for the Parent Borrower and its Restricted Subsidiaries.
“First
Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that,
subject to the Intercreditor Agreement or any other applicable intercreditor agreement, such Lien is senior in priority to any other
Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal
Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal
Year” means the fiscal year of the Parent Borrower ending on or about June 30 of each calendar year, as such fiscal year end
may be adjusted in accordance with the terms of this Agreement.
“Fixed
Amounts” has the meaning assigned to such term in Section
1.04(g).
“Flood
Hazard Property” means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real
Estate Asset is located in an area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of
1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters
Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with
all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing,
as amended or modified from time to time.
“Foreign
Asset Disposition” means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B)
one or more assets of the Parent Borrower or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign
Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the
Code.
“Foreign
Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.
“Funding
Account” has the meaning assigned to such term in Section
2.03(f).
“GAAP”
means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference
to GAAP is made.
“General
Intangibles” has the meaning set forth in Article
9 of the UCC.
“Governmental
Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S.,
a foreign government or any political subdivision of either thereof.
“Governmental
Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental
Authority.
“Granting
Lender” has the meaning assigned to such term in Section
9.05(e).
“GS
Bank” has the meaning assigned to such term in the preamble to this Agreement.
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole
or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any
other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or
otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); 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 in connection with any acquisition, Disposition or other transaction 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 by the guaranteeing
Person in good faith.
“Hazardous
Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated
by any Environmental Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste
defined or listed as “hazardous” or “toxic” in any Environmental Law.
“Hazardous
Materials Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement,
generation, transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling
of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge
Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary
and any other Person.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Bowlero Corp., a Delaware corporation, and (b) following the consummation of a transaction permitted hereunder that
results in a New Holdings, New Holdings.
“Holdings
Reorganization Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Parent Borrower to a
newly formed domestic “shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation
of Holdings with another Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Parent Borrower, in each
case, so long as, contemporaneously therewith (as applicable) (i) New Holdings delivers to the Administrative Agent any new certificate
issued (if any) to evidence the contributed Capital Stock of the Parent Borrower and grants a security interest in such Capital Stock
in favor of the Administrative Agent pursuant to the Security Agreement or a joinder thereto in a form reasonably satisfactory to the
Administrative Agent and (ii) New Holdings assumes the Loan Guaranty provided by Holdings and all other obligations of Holdings under
this Agreement and each of the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto that is reasonably
acceptable to the Administrative Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject
to the provisions of Section
1.04), to the extent applicable to the relevant financial statements.
“Immaterial
Subsidiary” means, as of any date, any Restricted Subsidiary of the Parent Borrower (a) that does not have assets in excess
of 2.5% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated
Adjusted EBITDA in excess of 2.5% of the Consolidated Adjusted EBITDA of the Parent Borrower and its Restricted Subsidiaries, in each
case, as of the last day of the most recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated
Adjusted EBITDA (as so determined) of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of Consolidated
Adjusted EBITDA, in each case, of the Parent Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test
Period; provided further that, at all times prior to the first delivery of financial statements pursuant to Section
5.01(a) or (b), this definition shall be applied
based on the pro forma consolidated financial statements of the Target delivered pursuant to Section
4.01.
“Immediate
Family Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or step-siblings (and linear
descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust,
partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, any of the
foregoing individual’s (including the initial individual) estate (or an executor or administrator acting on its behalf), heirs
or legatees or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which
any such individual is the donor.
“Incremental
Cap” means:
(a) the
Shared Incremental Amount, plus
(b) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any Class
of Loans and/or commitments
hereunder,
an amount equal to the portion of the relevant Class of Loans or commitments that will be replaced by such Incremental Facility or Incremental
Equivalent Debt, plus
(c) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Additional
Revolving Credit Commitment terminated in accordance with Section
2.19 hereof, an amount equal to the relevant terminated Revolving Credit Commitment or Additional Revolving Credit Commitment, plus
(d) (i)
the amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section
2.11(a) and/or the amount of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment,
redemption or repurchase of Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional
prepayment, redemption or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied
by a permanent reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment
of any Loan hereunder or of any Incremental Equivalent Debt, (iv) the amount of any optional prepayment, redemption or repurchase of
“Incremental Loans” and/or “Incremental Equivalent Debt” incurred pursuant to the “Shared Incremental Amount”
or of any “Replacement Term Loans” previously applied to the permanent prepayment of any of the foregoing (each as defined
in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and (v) the aggregate
amount of any Indebtedness referred to in clauses (i) through (iv) repaid or retired resulting from any assignment of such
Indebtedness to (and/or assignment and/or purchase of such Indebtedness by) Holdings, the Parent Borrower and/or any Restricted Subsidiary;
provided that for each of clauses (i) through (v), the relevant prepayment, redemption, repurchase or assignment
and/or purchase was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus
(e) an
unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of the
Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (but without netting
the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction (and, in the
case of any Incremental Revolving Facility then being established, assuming a full drawing thereunder), (i) if such Indebtedness is secured
by a first priority Lien on the Collateral, the First Lien Leverage Ratio does not exceed the greater of (x) 4.20:1.00 and (y) if such
Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the First Lien Leverage Ratio as of the last
day of the most recently ended Test Period, (ii) if such Indebtedness is secured by a Lien on the Collateral other than on a first priority
basis or is secured by a Lien on assets of the Parent Borrower or any Restricted Subsidiary that are not Collateral, the Secured Leverage
Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment
permitted hereunder, the Secured Leverage Ratio as of the last day of the most recently ended Test Period and (iii) if such Indebtedness
is unsecured, at the election of the Parent Borrower, either (A) the Total Leverage Ratio does not exceed the greater of (x) 5.00:1.00
and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Total Leverage Ratio
as of the last day of the most recently ended Test Period or (B) the Interest Coverage Ratio is not less than the lesser of (x) 2.00:1.00
and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Interest Coverage Ratio
as of the last day of the most recently ended Test Period;
provided
that:
(1)
any Incremental Facility and/or Incremental Equivalent Debt may be incurred under one or more
of clauses (a) through (e) of this definition as selected by the Parent Borrower in its sole discretion (provided that,
in the case of clause (e), an Incremental Facility may be incurred only under clause (i) thereof),
(2)
if any Incremental Facility or Incremental Equivalent Debt is intended to be incurred under
clause (e) of this definition and any other clause of this definition in a single transaction or series of related transactions,
(A) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred or implemented under clause
(e) of this definition shall be calculated first without giving effect to any Incremental Facilities or Incremental Equivalent Debt
to be incurred under any other clause of this definition, but giving full pro forma effect to the use of proceeds of the entire amount
of such Incremental Facility or Incremental Equivalent Debt and the related transactions and (B) the incurrence of the portion of such
Incremental Facility or Incremental Equivalent Debt to be incurred or implemented under the other applicable clauses of this definition
shall be calculated thereafter, and
(3)
any portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under
clauses (a) through (d) of this definition, unless otherwise elected by the Parent Borrower, shall automatically and without
need for action by any Person, be reclassified as having been incurred under clause (e) of this definition if, at any time after
the incurrence thereof, when financial statements required pursuant to Section
5.01(a) or (b) are delivered or, at Parent Borrower’s election, are internally available, such portion of such Incremental
Facility or Incremental Equivalent Debt would, using the figures reflected in such financial statements, be (or have been) permitted
under the First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set
forth in clause (e) of this definition.
“Incremental
Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental
Loans.
“Incremental
Equivalent Debt” means any Indebtedness that satisfies the following conditions:
(a)
the aggregate outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination
(after giving effect to any reclassification on or prior to such date of determination),
(b)
(A) unless such Indebtedness is in the form of revolving loans or a revolving facility or purchase money Indebtedness, or the
determination is being made with respect to obligations in respect of Capital Leases and/or any Sale and Lease-Back Transaction (as applicable),
the Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the
Amendment No. 8 Term Loans and the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date applicable
to the Amendment No. 8 Term Loans and (B) if such Indebtedness is in the form of revolving loans or a revolving facility, such Indebtedness
shall mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Amendment No. 6 Replacement and Incremental
Revolving Credit Maturity Date, in each case as determined on the date of the issuance or incurrence, as applicable, thereof; provided,
that the foregoing limitations shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided,
that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (b) or (ii) Indebtedness subject to the Permitted Earlier Maturity
Indebtedness Exception,
(c)
subject to clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the applicable Borrowers
and the lenders providing such Indebtedness,
(d)
if such Indebtedness is in the form of broadly-syndicated floating rate Dollar denominated term “B” loans that are
secured on a pari passu basis with the Amendment No. 8 Term Loans in right of payment and with respect to security (other than
customary bridge loans with a maturity date of not longer than one year that are convertible or exchangeable into, or are intended to
be refinanced with, any Indebtedness other than term loans that are pari passu with the Amendment No. 8 Term Loans in right of
payment and with respect to security), the MFN Provisions of Section 2.22(a)(v) shall apply to such Indebtedness
(as if, but only to the extent, including after giving effect to applicable exclusions and sunset provisions, such Indebtedness was an
Incremental Term Facility of the type subject to the provisions of Section 2.22(a)(v), mutatis mutandis),
(e)
if such Indebtedness is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor)
shall be party to an Acceptable Intercreditor Agreement,
(f)
such Indebtedness may provide for the ability to participate (A) on a pro
rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (B)
to the extent secured on a pari passu basis with the Amendment No. 8 Term Loans, on a pro rata basis (but not on a greater than pro rata
basis other than in the case of a prepayment with proceeds of Indebtedness refinancing such Incremental Equivalent Debt) in any mandatory
prepayment of Term Loans required pursuant to Section 2.11(b) or less than a pro rata basis with the then-outstanding Term
Facility, and
(g)
if any financial maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable
to the lenders under such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable
after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable
financial maintenance covenant (together with, at the election of the Parent Borrower, any applicable “equity cure” provisions
with respect to any such financial maintenance covenant).
“Incremental
Facilities” has the meaning assigned to such term in Section
2.22(a).
“Incremental
Facility Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely
for purposes of giving effect to Section 2.22) and
the Parent Borrower executed by each of (a) Holdings, the Parent Borrower and each Borrower thereunder, (b) the Administrative Agent
and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant thereto and in accordance
with Section 2.22.
“Incremental
Liquidity Facility Credit Agreement” has the meaning assigned to such term in Amendment No. 6.
“Incremental
Loans” has the meaning assigned to such term in Section
2.22(a).
“Incremental
Revolving Facility” has the meaning assigned to such term in Section
2.22(a).
“Incremental
Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion
of such Incremental Revolving Facility.
“Incremental
Revolving Loans” has the meaning assigned to such term in Section
2.22(a).
“Incremental
Term Facility” has the meaning assigned to such term in Section
2.22(a).
“Incremental
Term Loans” has the meaning assigned to such term in Section
2.22(a).
“Incurrence-Based
Amounts” has the meaning assigned to such term in Section
1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) the Attributable Debt
of such Person in respect of any Capital Lease of such Person; (c) 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 (excluding the footnotes thereto) of such
Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or any part of the deferred purchase price of
property or services (excluding (w) any earn out obligation or purchase price adjustment until such obligation (A) becomes a liability
on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and (B) has not been paid within 30 days
after becoming due and payable following expiration of any dispute resolution mechanics set forth in the applicable agreement governing
the applicable transaction, (x) any such obligations incurred under ERISA or under any employee consulting agreements, (y) accrued expenses,
trade accounts payable and accruals for payroll, in the ordinary course of business (including on an intercompany basis) and (z) liabilities
associated with customer prepayments and deposits), which purchase price is (i) due more than six months from the date of incurrence
of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness of others secured
by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness secured thereby has been assumed
by such Person or is non-recourse to the credit of such Person; (f) the face amount of any letter of credit issued for the account of
such Person or as to which such Person is otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness
of another; (h) all obligations of such Person in respect of any Disqualified Capital Stock; and (i) all net obligations of such Person
in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes;
provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any
calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or any
other financial ratio under this Agreement, (ii) in all cases Indebtedness shall exclude any Excluded Property Limited Recourse Financing,
(iii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the
aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith and (iv) the amount of any Limited Recourse Debt of any Person shall be deemed to be equal to the lesser of (A)
the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith.
For
all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than
any Joint Venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer,
except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness
would otherwise be included in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the
contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, (x) the effects of
Accounting Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease
an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such
Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application of
this proviso shall not be deemed an incurrence of Indebtedness hereunder), (y) the effects of Statement of Financial Accounting Standards
No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any
purpose hereunder as a result of
accounting for
any embedded derivative created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted
Indebtedness hereunder but for the application of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder) and
(z) Indebtedness of any Parent Company appearing on the balance sheet of the Parent Borrower or any of its Subsidiaries solely by reason
of push down accounting under GAAP.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee”
has the meaning assigned to such term in Section 9.03(b).
“Information”
has the meaning set forth in Section 3.11(a).
“Information
Memorandum” means the Confidential Information Memorandum finalized on or about June 20, 2017, relating to the Parent Borrower
and its subsidiaries and the Transactions.
“Initial
Lenders” means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing
Date.
“Initial
Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving Loans
(and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in the Assignment
Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 or 2.19,
(b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.05 or (c) increased pursuant to Section 2.22.
The aggregate amount of the Initial Revolving Credit Commitments as of the Closing Date was $50,000,000. On the Amendment No. 6 Effective
Date, the Initial Revolving Credit Commitments were refinanced in full by the Amendment No. 6 Replacement and Incremental Revolving Facility.
“Initial
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of
all Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline
Exposure, in each case, attributable to its Initial Revolving Credit Commitment.
“Initial
Revolving Credit Maturity Date” means the date that is five years after the Closing Date.
“Initial
Revolving Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of
credit thereunder. On the Amendment No. 6 Effective Date, the Initial Revolving Facility was refinanced in full by the Amendment No.
6 Replacement and Incremental Revolving Facility.
“Initial
Revolving Lender” means any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial
Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to a Borrower pursuant to Section
2.01(a)(ii). On the Amendment No 6. Effective Date, the Initial Revolving Loans were refinanced in full by Amendment No. 6 Replacement
and Incremental Revolving Loans.
“Initial
Term Lender” means any Person with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Commitment” means, with respect to any Person, the commitment of such Person to make Initial Term Loans hereunder
in an aggregate amount not to exceed the amount set forth opposite such Person’s name on the Commitment Schedule, as the same may
be (a) reduced from time to time pursuant to Section
2.09 or Section 2.19 and (b) reduced or increased
from time to time pursuant to (x) assignments by or to such Person pursuant to Section
9.05 or (y) an Additional Term Loan Commitment. The aggregate amount of the Initial Term Loan Commitments on the Closing Date is
$585,000,000. The aggregate amount of the Initial Term Loan Commitments on the Amendment No. 1 Effective Date is $113,000,000.
“Initial
Term Loan Maturity Date” means the date that is seven years after the Closing Date.
“Initial
Term Loans” means the term loans (including, without limitation, any Amendment No. 1 Incremental Term Loans) made by the Initial
Term Lenders to a Borrower pursuant to Section 2.01(a)(i).
“Intellectual
Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of
any Lien on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance with
this Agreement, including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1
hereto, (b) a Patent Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement
substantially in the form of Exhibit H-3 hereto.
“Intercreditor
Agreement” means the Intercreditor Agreement substantially in the form of Exhibit N hereto, dated as of the Closing
Date, among, inter alios, the Second Lien Collateral Agent, as agent for the Second Lien Claimholders referred to therein, the
Administrative Agent, as agent for the First Lien Claimholders referred to therein, if applicable, the provider of any Additional Letter
of Credit Facility (or a representative thereof) and the Loan Parties from time to time party thereto.
“Interest
Coverage Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated
Adjusted EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period; provided that, for purposes of calculating
the Interest Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Ratio Interest Expense shall be
an amount equal to actual Ratio Interest Expense from the Closing Date through the date of determination multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.
“Interest
Election Request” means a request by a Borrower in the form of Exhibit D hereto or another form reasonably acceptable
to the Administrative Agent to convert or continue a Borrowing in accordance with Section
2.08.
“Interest
Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December (commencing
with the last Business Day of March 2023) or the maturity date applicable to such Loan and (b) with respect to any Adjusted Term SOFR
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 an Adjusted
Term SOFR Rate Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest
Period” means with respect to any Adjusted Term SOFR 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 (or, to the extent acceptable
to all applicable Lenders, a shorter period); provided that (i) if any Interest Period would end on a day other than a Business
Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
“Investment”
means (a) any purchase or other acquisition by the Parent Borrower or any of its Restricted Subsidiaries of any of the Securities of
any other Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition
of inventory, materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business,
property or fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any
loan, advance (other than any advance to any current or former employee, officer, director, member of management, manager, consultant
or independent contractor of the Parent Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel
expenses, drawing accounts and similar expenditures or payroll expenses or advances in the ordinary course of business) or capital contribution
by the Parent Borrower or any of its Restricted Subsidiaries to any other Person. Subject to Section
5.10, the amount of any Investment shall be the original cost of such Investment, plus the cost of any addition thereto that
otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs
with respect thereto, but giving effect to any repayments of principal in the case of any Investment in the form of a loan and any return
of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale).
“Investors”
means (a) Atairos, (b) Isos Acquisition Sponsor, LLC, (c) the Shannon Holders, (d) the Management Investors, (e) other investors identified
to the Administrative Agent in writing that, directly or indirectly, beneficially own Capital Stock in Holdings on the Closing Date and
(f) any Related Investor Party of any of the foregoing.
“IP
Rights” has the meaning assigned to such term in Section
3.05(c).
“IRS”
means the U.S. Internal Revenue Service.
“ISDA
CDS Definitions” has the meaning assigned to such term in Section
9.02(g)(iv).
“ISDA
Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any
successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives
published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Issuing
Bank” means, as the context may require, (a) JPM, (b) solely with respect to any Existing Letter of Credit (and any amendment,
renewal or extension thereof in accordance with the terms of this Agreement), each Existing Letter of Credit Issuer and (c) each other
Revolving Lender party hereto from time to time that is appointed as an Issuing Bank in accordance with Section
2.05(i). Subject to the reasonable consent of the Parent Borrower (subject to the standards set forth in Section
9.05(b)), any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such
Issuing Bank, in
which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“Joint
Venture” means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited
liability company, business trust, joint venture, association, company or partnership, entered into by the Parent Borrower or any of
its Subsidiaries which (i) is engaged in a line of business in accordance with Section
5.16 and (ii) is formed or organized in a manner that limits the exposure of the Parent Borrower and its Subsidiaries for the liabilities
thereof to (A) the Investments of the Parent Borrower and its Subsidiaries therein permitted under Section
6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Parent Borrower or any of its Subsidiaries in respect of such
Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section
6.01.
“Junior
Indebtedness” means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Parent Borrower and/or
its subsidiaries) of the Parent Borrower or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in
right of payment to the Obligations.
“Kingpin
Intermediate” means Kingpin Intermediate Holdings LLC, a Delaware limited liability company.
“Latest
Maturity Date” means, as of 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 Initial Term Loan, Additional Term Loan, Revolving Loan,
Additional Revolving Loan, Initial Revolving Credit Commitment or Additional Commitment.
“Latest
Revolving Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to
any revolving loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving
Loan, any Additional Revolving Loan, the Revolving Credit Commitment or any Additional Revolving Credit Commitment.
“Latest
Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term
loan or term commitment hereunder at such time, including the latest maturity or expiration date of any Additional Term Loan or Additional
Term Loan Commitment hereunder at such time.
“LC
Collateral Account” has the meaning assigned to such term in Section
2.05(j).
“LC
Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time
and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any
Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
“Legal
Reservations” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good
faith and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender with an Additional Commitment or an outstanding Additional
Loan and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to
be a party hereto pursuant to an Assignment Agreement or as a result of the application of Section
9.05(g).
“Letter
of Credit” means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be
deemed to include all Existing Letters of Credit).
“Letter-of-Credit
Right” has the meaning set forth in Article
9 of the UCC.
“Letter
of Credit Sublimit” means $50,000,000, as increased from time to time in accordance with Section
2.22 hereof.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquor
License Subsidiaries” means (i) as of the Amendment No. 8 Effective Date, each of the Subsidiaries listed on Schedule 1.01(g)
hereto and (ii) thereafter, any other Restricted Subsidiary of the Parent Borrower established solely for the purpose of satisfying
applicable requirements of local Law with respect to the ownership and use of liquor licenses and which has entered into or has a bona
fide intent to enter into (A) a lease pursuant to which such Restricted Subsidiary leases, as lessee, from Holdings or one or more of
its Subsidiaries (other than another Liquor License Subsidiary) snack bar and related space at one or more bowling centers and (B) a
management services agreement with a Loan Party, pursuant to which such Loan Party provides employees, management and related services
to such Subsidiary.
“Limited
Condition Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted
by this Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited
Recourse Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions
for nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder
shall only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no
default with respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans
or Loans under any Second Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment thereof
to be accelerated or payable prior to its stated maturity.
“Loan
Documents” means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor Agreement,
any Acceptable Intercreditor Agreement and any other document or instrument designated by the Parent Borrower and the Administrative
Agent as a “Loan Document”, including any Incremental Facility Amendment (including Amendment No. 1), Refinancing Amendment
or Extension Amendment or any other amendment hereto or thereto (including Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment
No. 5, Amendment No. 6, Amendment No. 7, Amendment No. 8, Amendment No. 9 and,
Amendment No. 10 and Amendment No. 11). Any reference in this
Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan
Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party
party thereto and the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any
Person pursuant to Section 5.12 in
substantially the
form attached as Exhibit I hereto or another form that is otherwise reasonably satisfactory to the Administrative Agent and the
Parent Borrower.
“Loan
Installment Date” has the meaning assigned to such term in Section
2.10(a).
“Loan
Parties” means Holdings, the Parent Borrower, any Borrower and each Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan (including the Amendment No. 2 Term Loans, the Amendment No. 3 Incremental Term
Loans, the Amendment No. 8 Term Loans and the Amendment No. 9 Incremental Term Loans), any Revolving Loan, any Swingline Loan or any
Additional Revolving Loan (including the Amendment No. 6 Replacement and Incremental Revolving Loans).
“Management
Investors” means the officers, directors, managers, employees and members of management of (i) the Parent Borrower, (ii) any
Parent Company and/or (iii) any subsidiary of the Parent Borrower (including, on the Closing Date, those of the Target and its subsidiaries)
and the Related Investor Parties of any of the foregoing.
“Margin
Stock” has the meaning assigned to such term in Regulation U.
“Market
Capitalization” means, at any date of determination pursuant to Section
1.04(e), the amount equal to (a) the total number of then issued and outstanding shares of common Capital Stock of Holdings or any
Parent Company multiplied by (b) the arithmetic mean of the closing prices per share of such common Capital Stock on the principal
securities exchange on which such common Capital Stock are traded for the 30 consecutive trading days immediately preceding such date.
“Market
Intercreditor Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either (a)(i)
consistent with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating
to the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in
light of the type of Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the Lenders than the terms
of any Acceptable Intercreditor Agreement governing similar priorities that is then in effect, in each case as determined by the Parent
Borrower in good faith or (b) in the event a “Market Intercreditor Agreement” has been entered into after the Closing Date
meeting the requirement of the preceding clause (a), the terms of which are, taken as a whole, not materially less favorable to
the Lenders than the terms of such Market Intercreditor Agreement to the extent such agreement governs similar priorities.
“Material
Acquisition” means any Permitted Acquisition or other similar Investment (including any Investment in a Similar Business and
including any transaction in the form of a business combination) (or, in each case, any series thereof) the aggregate consideration for
which exceeds $200,000,000.
“Material
Adverse Effect” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a material
adverse effect on (i) the business, financial condition or results of operations, in each case, of the Parent Borrower and its Restricted
Subsidiaries, taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative Agent under the applicable
Loan Documents.
“Material
Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material
Disposition” means any Disposition not prohibited hereunder (or any series thereof) the aggregate consideration for which exceeds
$200,000,000.
“Material
Indebtedness” means third party Indebtedness for borrowed money in an aggregate principal amount exceeding the greater of $34,000,000
and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.
“Material
Intellectual Property” means any registered Patents, Trademarks and Copyrights (excluding, for the avoidance of doubt, customer
lists) owned by the Parent Borrower and the other Loan Parties that is material to the business of the Parent Borrower and its Restricted
Subsidiaries, taken as a whole (as determined by the Parent Borrower in good faith).
“Material
Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Amendment No. 8
Effective Date (other than as part of any EAP Substitution) having a fair market value (as determined by the Parent Borrower in good
faith after taking into account any liabilities with respect thereto that impact such fair market value or, if not then readily determinable,
a book value) in excess of $30,000,000 as of the date of acquisition thereof.
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect
to the Amendment No. 2 Term Loans (including any Amendment No. 3 Incremental Term Loans), the Initial Term Loan Maturity Date, (c) with
respect to the Amendment No. 6 Replacement and Incremental Revolving Facility, the Amendment No. 6 Replacement and Incremental Revolving
Credit Maturity Date, (d) with respect to the Amendment No. 8 Term Loans, the Amendment No. 8 Term Loan Maturity Date, (e) with respect
to any other Replacement Term Loans or any other Replacement Revolving Facility, the final maturity date for such Replacement Term Loans
or Replacement Revolving Facility, as the case may be, as set forth in the applicable Refinancing Amendment, (f) with respect to any
Incremental Facility, the final maturity date set forth in the applicable Incremental Facility Amendment and (g) with respect to any
Extended Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable Extension Amendment.
“Maximum
Rate” has the meaning assigned to such term in Section
9.19.
“Merger
Sub 1” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger
Sub 1 Merger” has the meaning assigned to such term in the Recitals to this Agreement.
“Merger
Sub 2” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger
Sub 2 Merger” has the meaning assigned to such term in the Recitals to this Agreement.
“Mergers”
or “Merger” means the Merger Sub 1 Merger and/or the Merger Sub 2 Merger, as the context may require.
“MFN
Provision” has the meaning assigned to such term in Section
2.22(a)(v).
“Minimum
Equity Percentage” has the meaning assigned to such term in the Recitals to this Agreement.
“Minimum
Extension Condition” has the meaning assigned to such term in Section
2.23(b).
“Moody’s”
means Moody’s Investors Service, Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage
Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer
Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that
is subject to the provisions of Title IV of ERISA, and in respect of which the Parent Borrower or any of its Restricted Subsidiaries,
or any of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any
ongoing obligation or liability, contingent or otherwise.
“Narrative
Report” means, with respect to the financial statements with respect to which it is delivered, a management discussion and
narrative report describing the operations of the Parent Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or
Fiscal Year and for the period from the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial
statements relate.
“Net
Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received
by the Parent Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder
of any assets of the Parent Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Parent
Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant
to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan Parties or
any of their respective subsidiaries, Affiliates or direct or indirect equityholders (i) any actual out-of-pocket costs and expenses
incurred in connection with the adjustment, settlement or collection of any claims in respect thereof, (ii) payment of the outstanding
principal amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness (other than the Loans, Indebtedness
under any Second Lien Facility and any Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly subordinated
to the Lien on the Collateral securing the Secured Obligations) that is secured by a Lien on the assets in question and that is required
to be repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale, (iii) in
the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling
costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’ fees, investment
banking fees, survey costs, title insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other
expenses and brokerage, consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes
and the Parent Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or
that are or would be imposed on intercompany distributions with such proceeds)) in connection with any sale or taking of such assets
as described in clause (a) of this definition, (v) any amounts provided as a reserve in accordance with GAAP against any liabilities
under any indemnification obligation or purchase price adjustments associated with any sale or taking of such assets as referred to in
clause (a) of this definition (provided that to the extent and at the time any such amounts are released from such reserve,
other than to make a payment for which such amount was reserved, such amounts shall constitute Net Insurance/Condemnation Proceeds) and
(vi) in the case of any covered loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated without
regard to this clause (vi)) attributable to minority interests and not available for distribution to or for the account of the
Parent Borrower or a Wholly-Owned Subsidiary as a result thereof.
“Net
Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash
Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received),
net of (with respect to any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket
expenses (including broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and the Parent Borrower’s
good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on
intercompany distributions with such proceeds) in connection with such Disposition), (ii) amounts provided as a reserve in accordance
with GAAP against any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition
(provided that to the extent and at the time any such amounts are released from such reserve, other than to make a payment for
which such amount was reserved, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any Second Lien Facility and any other Indebtedness
secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured
Obligations) which is secured by the asset sold in such Disposition and which is required to be repaid or otherwise comes due or would
be in default and is repaid (other than any such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows
(until released from escrow to the Parent Borrower or any of its Restricted Subsidiaries) from the sale price for such Disposition and
(v) in the case of any Disposition by any non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without
regard to this clause (v)) attributable to any minority interest and not available for distribution to or for the account of the
Parent Borrower or a Wholly-Owned Subsidiary as a result thereof; and (b) with respect to any issuance or incurrence of Indebtedness
or Capital Stock, the Cash proceeds thereof, net of all Taxes and fees, commissions, costs, underwriting discounts and other fees and
expenses incurred in connection therewith.
“Net
Short Lender” has the meaning assigned to such term in Section
9.02(f).
“net
short position” has the meaning assigned to such term in Section
9.02(g)(iv).
“Netted
Amounts” has the meaning assigned to such term in the definition of “Consolidated Total Debt”.
“New
Holdings” means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance
with the provisions of the definition thereof, hold 100% of the Capital Stock of the Parent Borrower.
“Non-Consenting
Lender” has the meaning assigned to such term in Section
2.19(b).
“Non-Debt
Fund Affiliate” means any Investor and any Affiliate of such Investor, other than any Debt Fund Affiliate.
“Notice
of Intent to Cure” has the meaning assigned to such term in Section
6.15(b).
“Obligations”
means all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposure,
all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations
of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing
Bank or any indemnified
party arising under the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired
by assumption), absolute, contingent, due or to become due, now existing or hereafter arising.
“Organizational
Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its
by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with
respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization
or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to any other form
of entity, such other organizational documents required by local Requirements of Law or customary under the jurisdiction in which such
entity is organized to document the formation and governance principles of such type of entity. In the event that any term or condition
of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily
certified by such governmental official.
“Other
Applicable Indebtedness” has the meaning assigned to such term in Section
2.11(b)(i).
“Other
Connection Taxes” means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or former
connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient having
executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or
Loan Document).
“Other
Taxes” means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar
taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than
an assignment made pursuant to Section 2.19). For
the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding
Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the amount of the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans
and Swingline Loans, as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available
to be drawn under such Letters of Credit after giving effect to any changes in the aggregate amount available to be drawn under such
Letters of Credit or the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect
to any LC Disbursements on any date, the amount of the aggregate outstanding amount of such LC Disbursements on such date after giving
effect to any disbursements with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount
of the LC Disbursements as of such date, including as a result of any reimbursements by the Parent Borrower of unreimbursed LC Disbursements.
“Packaged
Right” shall mean warrants, options or other rights to acquire shares of any class of the Capital Stock of Holdings, the Parent
Borrower, any Parent Company or any Restricted Subsidiary (whether settled in Capital Stock, cash or any combination thereof), regardless
of the issuer of such warrants, options or other rights, that are initially issued as a unit with Indebtedness of Holdings, the Parent
Borrower or any Parent Company or any Restricted Subsidiary (which may be guaranteed by Holdings or any Restricted Subsidiary) permitted
to be incurred hereunder, even if such Indebtedness is separable from such warrants, options or other rights by a holder thereof.
“Parent”
means A-B Parent LLC, a Delaware limited liability company.
“Parent
Borrower” has the meaning assigned to such term in the Recitals to this Agreement.
“Parent
Company” means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of any Investor (but in any event
not any portfolio company of any Investor), of which the Parent Borrower is an indirect Subsidiary.
“Participant”
has the meaning assigned to such term in Section 9.05(c).
“Participant
Register” has the meaning assigned to such term in Section
9.05(c).
“Patent”
means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and payments
now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights corresponding to
any of the foregoing.
“Payment”
has the meaning assigned to such term in Section 8.02(a).
“Payment
Notice” has the meaning assigned to such term in Section
8.02(b).
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension
Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that
is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Parent Borrower or any
of its Restricted Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute
to, or otherwise has any liability for, contingent or otherwise.
“Perfection
Certificate” means a certificate substantially in the form of Exhibit E.
“Perfection
Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other
appropriate office in the state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or other
appropriate assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable, (c) the
proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting
Collateral, in each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery to the Administrative
Agent of any stock certificate or promissory note to the extent required to be delivered by the applicable Loan Documents and (e) other
filings, recordings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Administrative
Agent or to enforce the rights of the Administrative Agent and the Secured Parties under the Loan Documents.
“Permitted
Acquisition” means any acquisition by the Parent Borrower or any of its Restricted Subsidiaries, whether by purchase, merger,
amalgamation or otherwise, of all or a substantial portion of the assets of, or any business line, unit or division or product line (including
research and development and related assets in respect of any product or facility) of, any Person or of a majority of the outstanding
Capital Stock of any Person (and, in any event, including any Investment in any Restricted Subsidiary which serves to increase the Parent
Borrower’s or any Restricted Subsidiary’s respective equity ownership in such
Restricted Subsidiary),
in each case if (1) such Person is or becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions,
is amalgamated, merged or consolidated with or into, or transfers or conveys all or a substantial portion of its assets (or such division,
business line, unit or product line or facility) to, or is liquidated into, the Parent Borrower and/or any Restricted Subsidiary as a
result of such transaction; provided that (i) the target Person, assets, business or division in respect of such acquisition is
a business permitted under Section 5.16 and (ii)
at the applicable time elected by the Parent Borrower in accordance with Section
1.04(e), with respect to such acquisition, no Event of Default under Section
7.01(a), (f) or (g)
shall be continuing.
“Permitted
Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) on Holdings’,
the Parent Borrower’s or a Parent Company’s common equity purchased in connection with the issuance of any Convertible Indebtedness
by Holdings, the Parent Borrower or a Parent Company; provided that the purchase price for such Permitted Bond Hedge Transaction (to
the extent paid by the Parent Borrower or a Restricted Subsidiary thereof), less the proceeds received by the Parent Borrower or its
Restricted Subsidiaries from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the
Parent Borrower and its Restricted Subsidiaries from (or on account of) the sale of such Convertible Indebtedness issued in connection
with the Permitted Bond Hedge Transaction.
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility and any Incremental Equivalent
Debt permitted to be incurred hereunder, that up to the aggregate principal amount of such Indebtedness outstanding at any time (the
“Specified Debt”) not to exceed the greater of $170,000,000 and 50% of Consolidated Adjusted EBITDA as of the last
day of the most recently ended Test Period may have a final maturity date that is earlier than, and a Weighted Average Life to Maturity
that is shorter than the remaining Weighted Average Life to maturity of, the Indebtedness with respect to which such Specified Debt is
otherwise required to have a later final maturity date or Weighted Average Life.
“Permitted
Equity” has the meaning assigned to such term in the Recitals to this Agreement.
“Permitted
Holders” means (a) the Investors and (b) any Person with which one or more Investors and/or the Shannon Holders form a “group”
(within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof) so long as, in the case of this clause (b),
the relevant Investors collectively own more than 50% of the relevant voting stock beneficially owned by the group.
“Permitted
Liens” means Liens permitted pursuant to Section
6.02.
“Permitted
Payee” means any future, current or former director, officer, member of management, manager, employee, independent contractor
or consultant (or any Immediate Family Member or transferee of any of the foregoing) of the Parent Borrower (or any Parent Company or
any subsidiary).
“Permitted
Reorganization” means any transaction or undertaking, including Investments, in connection with internal reorganizations and
or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto,
(a) the Loan Parties shall comply with the Collateral and Guarantee Requirements and Section
5.12 and (b) the security interest of the Secured Parties in the Collateral, taken as a whole, is not materially impaired (including
by a material portion of the assets that constitute Collateral immediately prior to such Permitted Reorganization no longer constituting
Collateral) as a result of such Permitted Reorganization.
“Permitted
Warrant Transaction” means any call option on, or warrant or right to purchase (or substantively equivalent derivative transaction),
Holdings’, the Parent Borrower’s or a Parent Company’s
common equity sold
by Holdings, the Parent Borrower or a Parent Company substantially concurrently with any purchase by Holdings, the Parent Borrower or
a Parent Company of a related Permitted Bond Hedge Transaction.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred
Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or
winding up.
“Prepayment
Asset Sale” means any Disposition by the Parent Borrower or its Restricted Subsidiaries made pursuant to Section
6.07(h).
“Primary
Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Prime
Rate” means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office
in New York City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative
Agent’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal
publications as the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate of
interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal
ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical
Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein,
any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve
Board (as reasonably determined by the Administrative Agent).
“Pro
Forma Basis” or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio,
the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net
Income or Consolidated Total Assets (including component definitions thereof) that each Subject Transaction shall be deemed to have occurred
as of the first day of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination
pertaining to the balance sheet, including the acquisition of Cash and Cash Equivalents in connection with an acquisition of a Person,
business line, unit, division or product line), as of the last day of such Test Period) with respect to any test or covenant for which
such calculation is being made and that:
(a) (i)
in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or
product line of the Parent Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction,
shall be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations
set forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b) any
Expected Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected Costs
Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in full during
the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to the extent
that such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the application
of, the definition of “Consolidated Adjusted EBITDA”,
(c) any
retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d) any
Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred
as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being
made; provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such
Indebtedness), (y) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined
by a Responsible Officer of the Parent Borrower in good faith to be the rate of interest implicit in such obligation in accordance with
GAAP and (z) interest on any 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 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 by the Parent Borrower, and
(e) the
acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant to
any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Parent Borrower
or any of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated
Total Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of
the applicable Test Period with respect to any test or covenant for which such calculation is being made.
In
the case of any calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage
Ratio or Consolidated Total Assets for any event described above that occurs prior to the date on which financial statements have been
(or are required to be) delivered pursuant to Section 5.01(b)
for the Fiscal Year ended on or about June 30, 2017, any such calculation required to be made on a “Pro Forma Basis” shall
use the consolidated financial statements of Holdings delivered to the Arrangers for the Fiscal Quarter ended April 2, 2017. Notwithstanding
anything to the contrary set forth in the immediately preceding paragraph, for the avoidance of doubt, when calculating the First Lien
Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate” and for purposes
of Section 6.15 (other than for the purpose of determining pro forma compliance with Section 6.15 as a condition
to taking any action under this Agreement), the events described in the immediately preceding paragraph that occurred subsequent to the
end of the applicable Test Period shall not be given pro forma effect.
“Projections”
means the projections of the Parent Borrower and its Subsidiaries included in the Information Memorandum (or a supplement thereto).
“Promissory
Note” means a promissory note of a Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit
G hereto, evidencing the aggregate outstanding principal amount of Loans of such Borrower to such Lender resulting from the Loans
made by such Lender.
“Public
Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with
the provisions of the Securities Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable
jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to
investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance,
listing fees and all executive, legal and professional fees related to the foregoing.
“Qualified
Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified
Receivables Facility” means any Receivables Facility that meets the following conditions: (a) the Parent Borrower shall have
determined in good faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions)
is in the aggregate economically fair and reasonable to the Parent Borrower and its Restricted Subsidiaries; (b) all sales of Receivables
Facility Assets and related assets by the Parent Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person
are made at fair market value (as determined in good faith by the Parent Borrower); (c) the financing terms, covenants, termination events
and other provisions thereof shall be on market terms (as determined in good faith by the Parent Borrower) and may include Standard Securitization
Undertakings; and (d) the obligations under such Receivables Facility are non-recourse (except for customary representations, warranties,
covenants and indemnities made in connection with such facilities) to the Parent Borrower or any of its Restricted Subsidiaries (other
than a Receivables Subsidiary).
“Qualifying
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Qualifying
Lender” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Ratio
Interest Expense” means, with respect to any Person for any period, (a) consolidated total cash interest expense of such Person
and its Restricted Subsidiaries for such period, (i) including the interest component of any payment under any Capital Lease (regardless
of whether accounted for as interest expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of deferred financing
fees, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses, (B) any expense arising from
any bridge, commitment, structuring and/or other financing fee (including fees and expenses associated with the Transactions, the Amendment
No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 3 Transactions and agency and trustee fees), (C) any expense
resulting from the discounting of Indebtedness in connection with the application of recapitalization accounting or, if applicable, acquisition
accounting, (D) fees and expenses associated with any Dispositions, acquisitions, Investments, issuances of Capital Stock or Indebtedness
(in each case, whether or not consummated), (E) costs associated with obtaining, or breakage costs in respect of, any Hedge Agreement
or any other derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to
Indebtedness, (F) penalties and interest relating to Taxes, (G) any “additional interest” or “liquidated damages”
for failure to timely comply with registration rights obligations, (H) interest expense with respect to Indebtedness of any Parent Company
of such Person appearing on the balance sheet of such Person solely by reason of push-down accounting under GAAP, (I) any payments with
respect to make-whole, prepayment or repayment premiums or other breakage costs of any Indebtedness, (J) any interest
expense attributable
to the exercise of appraisal rights or other rights of dissenting shareholders and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto in connection with the Transactions or any acquisition or Investment permitted hereunder
and (K) for the avoidance of doubt, any non-cash interest expense attributable to any movement in the mark to market valuation of any
obligation under any Hedge Agreement or any other derivative instrument and/or any payment obligation arising under any Hedge Agreement
or derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to Indebtedness
minus (b) cash interest income for such period. For purposes of this definition, (x) interest in respect of any Capital Lease
shall be deemed to accrue at an interest rate determined by such Person in good faith to be the rate of interest implicit in such Capital
Lease in accordance with GAAP and (y) for the avoidance of doubt, unless already included in the calculation of interest expense, interest
expense shall be calculated after giving effect to any payments made or received under any Hedge Agreement or any other derivative instrument
with respect to Indebtedness.
“Real
Estate Asset” means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels
of or interests in real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures
thereon) of such Loan Party.
“Receivables
Facility” means any of one or more receivables financing facilities or securitization financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, pursuant to which the Parent Borrower or any of the Restricted Subsidiaries
sells or grants a security interest in its Receivables Facility Assets to either (a) a Person that is not a Restricted Subsidiary or
(b) a Restricted Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or granting a security interest in
its Receivables Facility Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables
Subsidiary that in turn funds itself by borrowing from such a Person, in each case, that constitutes a Qualified Receivables Facility.
“Receivables
Facility Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable
or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith,
in each case subject to a Receivables Facility.
“Receivables
Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset
or participation interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
“Receivables
Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities,
and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging
in a Receivables Facility in which the Parent Borrower or any subsidiary makes an Investment and to which the Parent Borrower or any
subsidiary transfers Receivables Facility Assets.
“Reference
Time” with respect to any setting of the then-current Benchmark, (i) if such Benchmark is the Term SOFR Reference Rate, means
6:00 a.m. (New York City time) on the day that is two Business Days preceding the date of such setting and (ii) if such Benchmark is
not the Term SOFR Reference Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Refinancing”
has the meaning assigned to such term in Section 4.01(h).
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Parent
Borrower executed by (a) Holdings, the Parent Borrower and each Borrower thereunder, (b) the Administrative Agent and (c) each Lender
that agrees to provide all or any portion of the Replacement Term Loans or the Replacement Revolving Facility, as applicable, being incurred
pursuant thereto and in accordance with Section 9.02(c)
(including, for the avoidance of doubt, Amendment No. 6).
“Refinancing
Indebtedness” has the meaning assigned to such term in Section
6.01(p).
“Refunding
Capital Stock” has the meaning assigned to such term in Section
6.04(a)(viii).
“Register”
has the meaning assigned to such term in Section 9.05(b).
“Regulated
Bank” has the meaning assigned to such term in Section
9.02(g)(iii).
“Regulation
U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Regulation
X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Related
Funds” means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
“Related
Investor Party” means, with respect to any Person, (1) any Immediate Family Member of such Person, (2) any estate, trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners or owners of which consist solely of such Person and/or such other
Persons referred to in the immediately preceding clause (1) and/or (3) any executor, administrator, trustee, manager, director
or other similar fiduciary of such Person referred to in the immediately preceding clause (2), acting solely in such capacity.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers,
officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers
or other closed receptacles containing any Hazardous Material).
“Relevant
Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a
committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New
York, or any successor thereto.
“Replaced
Revolving Facility” has the meaning assigned to such term in Section
9.02(c).
“Replaced
Term Loans” has the meaning assigned to such term in Section
9.02(c).
“Replacement
Debt” means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering,
Rule 144A under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred
in respect of Indebtedness permitted under Section 6.01(a)
(and any subsequent refinancing of such Replacement Debt).
“Replacement
Revolving Facility” has the meaning assigned to such term in Section
9.02(c).
“Replacement
Term Loans” has the meaning assigned to such term in Section
9.02(c).
“Reply
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Reply
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Representation
and Warranty Insurance Policy” means the representation and warranty insurance policy obtained in connection with the Mergers.
“Representative”
has the meaning assigned to such term in Section 9.13.
“Repricing
Transaction” means each of (a) the optional prepayment (or mandatory prepayment pursuant to Section
2.11(b)(iii)), repayment, refinancing, substitution or replacement of all or a portion of the Amendment No. 8 Term Loans substantially
concurrently with the incurrence by any Loan Party of any broadly syndicated floating rate Dollar denominated long-term term “B”
loans secured on a pari passu basis with the Amendment No. 8 Term Loans (including any first-lien secured Replacement Term Loans)
having an Effective Yield that is less than the Effective Yield applicable to the Amendment No. 8 Term Loans so prepaid, repaid, refinanced,
substituted or replaced and (b) any amendment, waiver or other modification to this Agreement that would have the effect of reducing
the Effective Yield applicable to the Amendment No. 8 Term Loans; provided that the primary purpose (as determined by the Parent
Borrower in good faith) of such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification
was to reduce the Effective Yield applicable to the Amendment No. 8 Term Loans; provided, further, that in no event shall any
such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection with a Change
of Control, Material Acquisition or Material Disposition constitute a Repricing Transaction. Any determination by the Administrative
Agent of the Effective Yield for purposes of the definition shall be conclusive and binding on all Lenders, and the Administrative Agent
shall have no liability to any Person with respect to such determination absent bad faith, gross negligence or willful misconduct.
“Required
Excess Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 25% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Excess Cash Flow that is required to be applied to prepay Subject Loans under Section
2.11(b)(i) for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the scheduled date of prepayment
(after giving pro forma effect to such prepayment and to any other repayment or prepayment at or prior to the time such Excess Cash Flow
prepayment is due).
“Required
Lenders” means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing
more than 50% of the sum of the total Loans and such unused commitments at such time.
“Required
Net Proceeds Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
100%, (b) if the First Lien Leverage Ratio is less than or equal to
4.00:1.00 and greater
than 3.50:1.00, 50% and (c) if the First Lien Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that,
for purposes of this definition as it applies to the determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds
that are required to be applied to prepay Subject Loans under Section 2.11(b)(ii) for any payment, the First Lien Leverage
Ratio shall be determined on the date on which such proceeds are received by the Parent Borrower or applicable Restricted Subsidiary
(giving pro forma effect to the subject Dispositions and/or casualty events and the application of the relevant proceeds thereof).
“Required
Revolving Lenders” means, at any time, Lenders having Initial Revolving Loans, Additional Revolving Loans, unused Initial Revolving
Credit Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Initial Revolving
Loans, Additional Revolving Loans and such unused Revolving Credit Commitments at such time.
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof
by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having
the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its
property is subject.
“Resolution
Authority” means, an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible
Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant
treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person
and any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect
of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other
individual or similar official thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices
given pursuant to Article 2, any other officer of
the applicable Loan Party so designated by any of the foregoing officers in a written notice to the Administrative Agent (including,
for the avoidance of doubt, by electronic means). Any document delivered hereunder that is signed by a Responsible Officer of any 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.
“Responsible
Officer Certification” means, with respect to the financial statements for which such certification is required, the certification
of a Responsible Officer of the Parent Borrower that such financial statements fairly present, in all material respects, in accordance
with GAAP, the consolidated financial condition of the Parent Borrower as at the dates indicated and its consolidated income and cash
flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly
financial statements, the absence of footnotes.
“Restricted
Amount” has the meaning set forth in Section
2.11(b)(iv).
“Restricted
Debt” means any Junior Indebtedness that is required by the terms of this Agreement to mature after the Amendment No. 8 Term
Loan Maturity Date to the extent the outstanding principal amount thereof is equal to or greater than the Threshold Amount.
“Restricted
Debt Payment” has the meaning set forth in Section
6.04(b).
“Restricted
Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Parent
Borrower, except a dividend payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase
such Qualified Capital Stock) to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value of any shares of any class of the Capital Stock of the Parent Borrower and (c) any payment made to retire,
or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock
of the Parent Borrower now or hereafter outstanding. The amount of any Restricted Payment (other than Cash) shall be the fair market
value, as determined in good faith by the Parent Borrower on the applicable date set forth in Section
1.04(e), of the assets or securities proposed to be transferred or issued by the Parent Borrower pursuant to such Restricted Payment.
For the avoidance of doubt, any payment or delivery on account of any Indebtedness convertible into or exchangeable for Capital Stock
(including, for the avoidance of doubt, Convertible Indebtedness) or on account of Packaged Rights shall be deemed not to be a Restricted
Payment.
“Restricted
Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise
specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Parent Borrower.
“Return
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Revolving
Credit Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving
Facility” means the Initial Revolving Facility and, if applicable, any Incremental Revolving Facility, any facility governing
any Extended Revolving Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving
Facility Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding Amount
of (a) all Revolving Loans (including Swingline Loans) as of such date, (b) LC Disbursements as of such date that have not been reimbursed
within three Business Days and (c) Letters of Credit (excluding (i) any Letter of Credit to the extent cash collateralized or back-stopped
and (ii) other Letters of Credit (or any portion thereof) in an aggregate face amount up to $25,000,000 (with only such Letter of Credit
amounts in excess of $25,000,000 being applied for purposes hereof)) exceeds an amount equal to 35% of the Total Revolving Credit Commitment.
“Revolving
Lender” means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the
term “Revolving Lenders” shall include the Swingline Lender.
“Revolving
Loans” means any Initial Revolving Loans and any Additional Revolving Loans.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global, Inc.
“Sale
and Lease-Back Transaction” has the meaning assigned to such term in Section
6.08.
“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the
time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the
Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State,
(b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons
described in the foregoing clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled
Consideration” has the meaning assigned to such term in Section
2.11(b)(i).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second
Lien Claimholders” has the meaning set forth in the Intercreditor Agreement.
“Second
Lien Collateral Agent” has the meaning set forth in the Intercreditor Agreement.
“Second
Lien Credit Agreement” means the Second Lien Credit Agreement, dated as of the Closing Date, among, inter alios, Holdings,
the Parent Borrower and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders from time
to time party thereto.
“Second
Lien Facility” means the credit facility governed by the Second Lien Credit Agreement and one or more debt facilities or other
financing arrangements (including indentures) providing for loans, notes or other long-term indebtedness that replace or refinance such
facility or other financing arrangement, including any such replacement or refinancing facility or indenture or other financing arrangement
that increases or decreases the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or
any other agent, lender or group of lenders, and any amendments, supplements, modifications, extensions, renewals, restatements, amendments
and restatements or refundings thereof or any such indentures or facilities or other financing arrangement that replace or refinance
such credit facility (or any subsequent replacement thereof), in each case to the extent permitted or not restricted by this Agreement.
“Secured
Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that
(a) is in effect on the Closing Date between any Loan Party or Restricted Subsidiary and a counterparty that is an Approved Counterparty
at such time or (b) is entered into after the Closing Date between any Loan Party or Restricted Subsidiary and any counterparty that
is an Approved Counterparty at the time such Hedge Agreement is entered into (or thereafter, if such counterparty is so designated as
an Approved Counterparty at a later date), for which such Loan Party or Restricted Subsidiary agrees to provide or procure security and
in each case that has not been designated to the Administrative Agent in writing by the Parent Borrower as not constituting a “Secured
Hedging Obligation” for purposes of the Loan Documents, it being understood that each counterparty thereto shall be deemed (A)
to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of
Article 8, Sections 9.03
and 9.10 and the Intercreditor Agreement and
each other Acceptable Intercreditor Agreement as if it were a Lender.
“Secured
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Parent Borrower and its Restricted Subsidiaries; provided that solely
for purposes of calculating the Secured Leverage Ratio in connection with the incurrence of Incremental Equivalent Debt, clause (a)
of this definition shall also include Consolidated Total Debt as of such date that is secured by a Lien on any non-Collateral assets
of the Parent Borrower or any Restricted Subsidiary.
“Secured
Obligations” means all Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations;
provided that Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Secured Obligations on and
after the Termination Date.
“Secured
Parties” means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) the Administrative Agent, (iii) each counterparty
to a Hedge Agreement with a Loan Party or a Restricted Subsidiary the obligations under which constitute Secured Obligations, (iv) each
provider of Banking Services to any Loan Party or a Restricted Subsidiary the obligations under which constitute Secured Obligations,
(v) the Arrangers and (vi) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.
“Securities”
means any stock, shares, units, 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; provided that the term “Securities” shall not include any earn-out agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities
Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization
Repurchase Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified
Receivables Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise,
including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset
or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security
Agreement” means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan
Parties and the Administrative Agent for the benefit of the Secured Parties.
“Series
A Preferred Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having
the terms set forth in the certificate of incorporation of the Target, as amended and restated in connection with the Merger Sub I Merger.
“Shannon
Holders” means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a
trust, family-partnership or estate-planning vehicle or other legal entity substantially all the economic interests of which are held
by or for the benefit of Thomas Shannon and/or any of his Immediate Family Members, (v) any executor, administrator, trustee, manager,
director or other similar fiduciary of the entity referred to in the immediately preceding clause (iv), acting
solely in such
capacity and (vi) any other Affiliate of Thomas Shannon or any other Shannon Holder, including The Cobalt Group LLC.
“Shared
Incremental Amount” means, as of any date of determination, (a) the greater of (i) $340,000,000 and (ii) 100% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (b) (i) the aggregate principal amount of all
Incremental Facilities and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared Incremental Amount
outstanding on such date and (ii) the aggregate principal amount of “Incremental Loans” and “Incremental Equivalent
Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second
Lien Facility) originally incurred or issued in reliance on the Shared Incremental Amount outstanding on such date, in each case after
giving effect to any reclassification of any such Indebtedness as having been incurred under clause (e) of the definition of “Incremental
Cap” hereunder or clause (e) of the definition of “Incremental Cap” (as defined in the Second Lien Credit Agreement
or any equivalent term under any documentation governing any Second Lien Facility).
“Similar
Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section
5.16 if the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SLB
Property” means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that
are subject to the Carlyle Sale/Leaseback or the Carlyle Sale/Leaseback 2014.
“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 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
Determination Date” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.
“SOFR
Rate Day” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.
“SPC”
has the meaning assigned to such term in Section 9.05(e).
“Specified
Acquisition Agreement Representations” means the representations and warranties made by or on behalf of the Target, its subsidiaries
or their respective businesses in the Acquisition Agreement which are material to the interests of the Lenders, but only to the extent
that Merger Sub (or its applicable affiliate) has the right to terminate its obligations under the Acquisition Agreement or to decline
to consummate the Acquisition as a result of a breach of such representations and warranties.
“Specified
Indebtedness” has the meaning assigned to such term in Section
9.02(f).
“Specified
Representations” means the representations and warranties set forth in Section
3.01(a)(i) (as it relates to Holdings and any Borrower), Section 3.02 (as it relates to the due authorization, execution,
delivery and performance of the Loan Documents and the enforceability thereof), Section
3.03(b)(i) (limited to the execution, delivery and performance of the Loan Documents, incurrence of the Indebtedness thereunder and
the granting of Guarantees and Liens in respect thereof), Section 3.08, Section 3.12, Section 3.14
(as it relates to the creation, validity and perfection of the security interests in the Collateral, subject to the last sentence
of Section 4.01), Section 3.16 and
Sections 3.17(a)(ii) and (c).
“Standard
Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Parent Borrower
or any Subsidiary of the Parent Borrower which the Parent Borrower has determined in good faith to be customary in a Receivables Facility,
including, without limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any
Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Standby
Letter of Credit” means any Letter of Credit other than any Commercial Letter of Credit.
“Stated
Amount” means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each
case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had
in fact occurred at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to
all previous drawings made thereunder.
“Subject
Loans” means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to
ratable prepayment requirements in accordance with Section
2.11(b) on such date of repayment.
“Subject
Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject
Proceeds” has the meaning assigned to such term in Section
2.11(b)(ii).
“Subject
Transaction” means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition,
whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business line, unit or division
of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment
in any Restricted Subsidiary which serves to increase the Parent Borrower’s or any Restricted Subsidiary’s respective equity
ownership in such Restricted Subsidiary), in each case that is permitted by this Agreement, (c) any Disposition of all or substantially
all of the assets or Capital Stock of a subsidiary (or any business unit, line of business or division of the Parent Borrower or a Restricted
Subsidiary) not prohibited by this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted
Subsidiary as a Restricted Subsidiary in accordance with Section
5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than revolving Indebtedness), (f) any Cost Savings Initiative
and/or (g) any 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.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and
policies thereof
is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or
a combination thereof; provided that in determining the percentage of ownership interests of any Person controlled by another
Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
Unless otherwise specified, “subsidiary” shall mean any subsidiary of the Parent Borrower.
“Subsidiary
Guarantor” means (x) on the Closing Date, each subsidiary of the Parent Borrower (other than any subsidiary that is an Excluded
Subsidiary on the Closing Date) and (y) thereafter, each subsidiary of the Parent Borrower, other than a Borrower, that becomes a guarantor
of the Secured Obligations pursuant to the terms of this Agreement, in each case, until such time as the relevant subsidiary is released
from its obligations under the Loan Guaranty in accordance with the terms and provisions hereof. Notwithstanding the foregoing, the Parent
Borrower may from time to time, upon notice to the Administrative Agent (or in the case of a Foreign Subsidiary, the prior written consent
of the Administrative Agent (not to be unreasonably withheld or delayed)), elect to cause any subsidiary that would otherwise be an Excluded
Subsidiary to become a Subsidiary Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction of guarantee
and collateral requirements consistent with the Collateral and Guarantee Requirements or otherwise reasonably acceptable to the Parent
Borrower and the Administrative Agent (which shall include, in the case of a Foreign Subsidiary, guarantee and collateral requirements
customary under local law, including customary local limitations).
“Successor
Borrower” has the meaning assigned to such term in Section
6.07(a).
“Successor
Parent Borrower” has the meaning assigned to such term in Section
6.07(a).
“Surviving
Person” has the meaning assigned to such term in Section
6.07(a).
“Swap
Obligations” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline
Exposure” means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline
Lender” means JPM, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
“Swingline
Loan” means any Loan made pursuant to Section
2.04.
“Target”
means Bowlmor AMF Corp., a Delaware corporation.
“Tax
Group” has the meaning assigned to such term in Section
6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
“Termination
Date” has the meaning assigned to such term in the lead-in to Article
5.
“Term
Facility” means the Term Loans provided to or for the benefit of the Borrowers pursuant to the terms of this Agreement.
“Term
Lender” means a Person with an Initial Term Loan Commitment or outstanding Initial Term Loan or an Additional Term Loan Commitment
(including the Amendment No. 2 Term Loan Commitments, Amendment No. 3 Incremental Term Loan Commitments, Amendment No. 8 Term Loan Commitments
and Amendment No. 9 Incremental Term Loan Commitments) or an outstanding Additional Term Loan (including the Amendment No. 2 Term Loans
which, for the avoidance of doubt, include the Amendment No. 3 Incremental Term Loans, and Amendment No. 8 Term Loans which, for the
avoidance of doubt, include the Amendment No. 9 Incremental Term Loans).
“Term
Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans (including the Amendment No. 2 Term Loans,
Amendment No. 3 Incremental Term Loans, Amendment No. 8 Term Loans and Amendment No. 9 Incremental Term Loans).
“Term
SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based
on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term
SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term
SOFR Rate” means, with respect to any Adjusted Term SOFR Rate Borrowing for any tenor comparable to the applicable Interest
Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to
the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator;
provided that the Term SOFR Rate for any Interest Period shall not be less than 0.00% per annum.
“Term
SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect
to any Adjusted Term SOFR Rate Borrowing for any tenor comparable to the applicable Interest Period, the rate per annum determined by
the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination
Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and
a Benchmark Replacement Date with respect to the Adjusted Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such
Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities
Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding
Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.
“Test
Period” means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period
of four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section
5.01(b), as applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of
four consecutive Fiscal Quarters then most recently ended for which financial statements under Section
5.01(a) or Section 5.01(b), as applicable, have
been delivered (or are required to have been delivered) or, at Parent Borrower’s election, are internally available; it being understood
and agreed that prior to the first delivery (or required delivery) of financial statements under Section
5.01(a), “Test Period” means the period of four consecutive Fiscal Quarters most recently ended for which financial statements
of Holdings and its consolidated subsidiaries are available.
“Threshold
Amount” means the greater of $85,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period.
“Total
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“Total Leverage Ratio” is used in this Agreement in each case for the Parent Borrower and its Restricted Subsidiaries.
“Total
Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such
time. The Total Revolving Credit Commitment as of the Closing Date was $50,000,000. The Total Revolving Credit Commitment as of the Amendment
No. 1011 Effective
Date is $285,000,000335,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and
other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof
and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past and
future infringements thereof; (d) all rights to sue for past, present and future infringements of the foregoing, including the right
to settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction
Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable
or otherwise borne by any Parent Company and/or its subsidiaries in connection with the Transactions, the Amendment No. 1 Transactions,
the Amendment No. 2 Transactions, the Amendment No. 8 Transactions and, in each case, the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party
and the Borrowing of Loans hereunder, (b) the Acquisition, (c) the Equity Contribution, (d) the Refinancing, (e) the execution, delivery
and performance of, including the incurrence of Indebtedness under, the Second Lien Credit Agreement and (f) the payment of the Transaction
Costs.
“Treasury
Capital Stock” has the meaning assigned to such term in Section
6.04(a)(viii).
“Treasury
Regulations” means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted Term SOFR Rate or the Alternate Base Rate.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“UK
Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to
time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook
(as amended from time to time)
promulgated by
the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the
resolution of any UK Financial Institution.
“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unrestricted
Cash Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents
of such Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that
are restricted in favor of the Credit Facilities, any Second Lien Facility and/or other permitted pari passu or junior secured
Indebtedness (which may also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along
with the Credit Facilities, any Second Lien Facility and/or any other permitted pari passu or junior secured Indebtedness), in
each case as determined in accordance with GAAP.
“Unrestricted
Subsidiary” means any subsidiary of the Parent Borrower designated by the Parent Borrower as an Unrestricted Subsidiary on
the Closing Date and listed on Schedule 5.10 hereto or after the Closing Date pursuant to Section
5.10.
“Unused
Revolving Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender
at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s
LC Exposure at such time and (c) except for purposes of Section
2.12(a), such Lender’s Applicable Percentage of the aggregate Outstanding Amount of Swingline Loans.
“U.S.”
or “United States” means the United States of America.
“U.S.
Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities
Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities.
“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S.
Tax Compliance Certificate” has the meaning assigned to such term in Section
2.17(f).
“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 scheduled 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; provided that (x) the effect of any prepayment made in respect of such Indebtedness shall be disregarded
in making such calculation and (y) any “AHYDO catch-up” payment that may be required to be made in respect of such Indebtedness
shall be disregarded in making such calculation.
“Wholly-Owned
Subsidiary” of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’
qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Write-Down
and Conversion Powers” means, with respect to any Resolution Authority, the write-down and conversion powers of such Resolution
Authority from time to time under the Bail-In Legislation for an EEA Member Country or the United Kingdom, as applicable.
Section
1.02. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term Loan”)
or by Type (e.g., an “Adjusted Term SOFR Rate Loan”) or by Class and Type (e.g., an “Adjusted Term SOFR Rate Term Loan”).
Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g., an “Adjusted
Term SOFR Rate Borrowing”) or by Class and Type (e.g., an “Adjusted Term SOFR Rate Term Loan Borrowing”).
Section
1.03. Terms
Generally. (a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and
effect as the word “shall.” The words “ordinary course of business” or “ordinary course” shall, with
respect to any Person, be deemed to refer to items or actions that are consistent with industry practice of such Person’s business
industry or such Person’s past practice (it being understood that the sale of accounts receivable (and related assets) pursuant
to supply-chain, factoring or reverse factoring arrangements entered into by the Parent Borrower and its Restricted Subsidiaries shall
be deemed to be in the ordinary course of business so long as such accounts receivable (and related assets) are sold for Cash in an amount
not less than 95% of the face amount thereof). Unless the context requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein or in any Loan Document (including any Loan Document, the Second Lien Credit Agreement and any Loan
Document referred to therein) shall be construed as referring to such agreement, instrument or other document as from time to time amended,
restated, amended and restated, supplemented or otherwise modified or extended, replaced or refinanced (subject to any restrictions or
qualifications on such amendments, restatements, amendment and restatements, supplements or modifications or extensions, replacements
or refinancings set forth herein), (ii) any reference to any Requirement of Law in any Loan Document shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing, superseding or interpreting such Requirement of Law, (iii) any
reference herein or in any Loan Document to any Person shall be construed to include such Person’s successors and permitted assigns,
(iv) the words “herein,” “hereof” and “hereunder,” and words of similar import, when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision hereof, (v) all
references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be construed to refer
to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan Document, (vi) in the computation of periods
of time in any Loan Document from a specified date to a later specified date, the word “from” means “from and including”,
the words “to” and “until” mean “to but excluding” and the word “through” means “to
and including”, (vii) the words “asset” and “property”, when used in any Loan Document, 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, (viii) the words “permitted” shall be construed to also refer to actions or undertakings that
are “not prohibited” and (ix) any reference to “open market purchases” (or words of similar effect) shall, for
the avoidance of doubt, include any privately negotiated purchase at any price agreed among the parties thereto (including for cash and/or
other consideration). For the avoidance of doubt, all references to Amendment No. 2 Loans herein, shall, from and after the
Amendment No. 3
Effective Date (as applicable), include (and be deemed to include) Amendment No. 3 Incremental Term Loans in order to result in equivalent
treatment thereof. For the avoidance of doubt, all references to Amendment No. 8 Term Loans herein, shall, from and after the Amendment
No. 9 Effective Date (as applicable), include (and be deemed to include) Amendment No. 9 Incremental Term Loans in order to result in
equivalent treatment thereof.
(b)
For purposes of determining compliance at any time with Sections 6.01, 6.02,
6.04, 6.06 and 6.07, in the event that any Indebtedness,
Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable, or portion thereof, at any time meets the
criteria of more than one of the categories of transactions or items permitted pursuant to any clause of such Sections 6.01
(other than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing Date) and (x)),
6.02 (other than Sections 6.02(a) and (t) (with respect
to Section 6.01(x)), 6.04, 6.06 and 6.07
(each of the foregoing, a “Reclassifiable Item”), the Parent Borrower, in its sole discretion, may, from time
to time, divide, classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section
and will only be required to include such Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery
of any financial statements pursuant to Section 5.01(a) or (b) following the
initial incurrence or making of any such Reclassifiable Item, if such Reclassifiable Item could, based on such financial statements,
have been incurred or made in reliance on Section 6.01(z) (in the case of Indebtedness and Liens) or any “ratio-based”
basket or exception (in the case of all other Reclassifiable Items), such Reclassifiable Item shall automatically be reclassified as
having been incurred or made under the applicable provisions of Section 6.01(z) or such “ratio-based”
basket or exception, as applicable (in each case, subject to any other applicable provision of Section 6.01(z)
or such “ratio-based” basket or exception, as applicable). It is understood and agreed that any Indebtedness, Lien, Restricted
Payment, Restricted Debt Payment, Investment and/or Disposition need not be permitted solely by reference to one category of permitted
Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment and/or Disposition under Sections 6.01,
6.02, 6.04, 6.06 or 6.07,
respectively, but may instead be permitted in part under any combination thereof or under any other available exception.
Section
1.04. Accounting
Terms; GAAP.
(a)
(i) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect
from time to time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in
calculating the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated
Adjusted EBITDA, Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP as in
effect from time to time; provided that (A) if any change in GAAP or in
the application thereof or any change as a result of the adoption or modification of accounting policies (including (x) the conversion
to IFRS as described below and (y) the impact of Accounting Standards Update 2016-12, Revenue from Contracts with Customers (Topic 606)
or similar revenue recognition policies or any change in the methodology of calculating reserves for returns, rebates and other chargebacks)
is implemented or takes effect after the date of delivery of the financial statements described in Section 3.04(a)
and/or there is any change in the functional currency reflected in the financial statements or (B)
if the Parent Borrower elects or is required to report under IFRS, the Parent Borrower or the Required Lenders may request to amend the
relevant affected provisions hereof (whether or not the request for such amendment is delivered before or after the relevant change or
election) to eliminate the effect of such change or election, as the case may be, on the operation of such provisions and (x) the Parent
Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (it
being understood that no amendment or similar fee shall be payable to the Administrative Agent or any Lender in connection therewith)
to preserve the original intent thereof in light of the applicable change or election, as the case may be and (y) the relevant affected
provisions shall be interpreted on the basis of GAAP and the currency, in each case, as in effect and applied immediately prior to the
applicable
change or election,
as the case may be, until the request for amendment has been withdrawn by the Parent Borrower or the Required Lenders, as applicable,
or this Agreement has been amended as contemplated hereby. Any consent required from the Administrative Agent or any Required Lender
with respect to the foregoing shall not be unreasonably withheld, conditioned or delayed.
(ii) 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 (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as
Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Parent Borrower
or any subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt
instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting
Standard or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated
manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii)
the application of Accounting Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements under Accounting Standards
Codification 718 result in recording an equity award as a liability on the consolidated balance sheet of the Parent Borrower and its
Restricted Subsidiaries in the circumstance where, but for the application of the pronouncements, such award would have been classified
as equity). If the Parent Borrower notifies the Administrative Agent that the Parent Borrower (or its applicable Parent Company) is required
to report under IFRS or has elected to do so through an early adoption policy, “GAAP” shall mean international financial
reporting standards pursuant to IFRS (provided thereafter, the Parent Borrower cannot elect to report under GAAP). Any calculation or
determination in this Agreement that requires the application of GAAP across multiple quarters need not be calculated or determined using
the same accounting standard for each constituent quarter.
(b)
Notwithstanding anything to the contrary herein, but subject to Sections 1.04(d), (e)
and (g), all financial ratios and tests (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured
Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated Total Assets, Consolidated Net Income and Consolidated Adjusted
EBITDA (other than, for the avoidance of doubt, for purposes of calculating Excess Cash Flow)) contained in this Agreement that are calculated
with respect to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test Period and
such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to the date of
any required calculation of any financial ratio, test or amount (x) any Subject Transaction has occurred or (y) any Person that subsequently
became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Parent Borrower or any of its Restricted Subsidiaries
since the beginning of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio,
test or amount shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning
of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance
sheet, including the acquisition of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the
avoidance of doubt, that solely for purposes of (x) calculating quarterly compliance with Section 6.15 and
(y) calculating the First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment
Fee Rate”, in each case, the date of the required calculation shall be the last day of the Test Period, and no Subject Transaction
occurring thereafter shall be taken into account.
(c)
Notwithstanding anything to the contrary contained in paragraph (a)
above or in the definition of “Attributable Debt”, “Capital Lease” or “Capital Lease Obligation”,
unless the Parent Borrower elects otherwise, 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 (and not be treated as financing or capital lease obligations
or Indebtedness) for purposes of all financial definitions, calculations and deliverables under this Agreement or any other Loan Document
(including the calculation of Consolidated Net Income and Consolidated Adjusted EBITDA) (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 or any other change
in accounting treatment or otherwise (on a prospective or retroactive basis or otherwise) to be treated as or to be recharacterized as
financing or capital lease obligations or otherwise accounted for as liabilities in financial statements. Notwithstanding anything contained
in any Loan Document to the contrary, the leases relating to the Carlyle Sale/Leaseback, the Carlyle Sale/Leaseback 2014, any Excluded
Property Sale/Leaseback Transaction and any other Sale and Lease-Back Transaction shall be deemed not to be and shall not otherwise be
classified as a Capital Lease (and the obligations in respect thereof shall not be considered Indebtedness) but shall instead be accounted
for and classified as operating leases for all purposes of this Agreement and any other Loan Document (including with respect to the
calculation of Consolidated Net Income and Consolidated Adjusted EBITDA).
(d)
For purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents
requires a calculation of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage Ratio, the
Secured Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated
Total Assets), subject to the succeeding clause (e), such financial ratio, test or amount shall be calculated at
the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no
Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio, financial test or
amount occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the
case may be.
(e)
Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the
terms of this Agreement require (i) compliance with any financial ratio or
financial test (including, without limitation, Section 6.15(a) hereof, any First Lien Leverage Ratio test,
any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) and/or any cap expressed as a
percentage of Consolidated Total Assets or Consolidated Adjusted EBITDA, (ii)
accuracy of any representation or warranty and/or the absence of a Default or Event of Default (or any type of default or event of default)
or (iii) compliance with any basket, as a condition to (A)
the consummation of any transaction (including in connection with any acquisition or similar Investment or the assumption or incurrence
of Indebtedness), (B) the making of any Restricted Payment and/or (C)
the making of any Restricted Debt Payment, in each case in connection with a Limited Condition Transaction, the determination of whether
the relevant condition is satisfied may be made, at the election of the Parent Borrower, (1)
in the case of any acquisition or similar Investment or any Disposition and any transaction related thereto, at the time of (or on the
basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive
agreement with respect to such acquisition, Investment or Disposition or (y) the consummation of such acquisition, Investment or Disposition,
(2) in the case of any Restricted Payment, at the time of (or on the basis of
the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y)
the making of such Restricted Payment and (3) in the case of any Restricted Debt
Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery
of notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving
effect to the relevant acquisition, Restricted Payment and/or Restricted Debt Payment or other transaction on a Pro Forma Basis (including,
in each case, giving effect to the relevant transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and,
at the election
of the Parent Borrower, giving pro forma effect to other prospective Limited Condition Transactions that are acquisitions or similar
Investments for which definitive agreements have been executed, and no Default or Event of Default shall be deemed to have occurred solely
as a result of an adverse change in such financial ratio or test occurring after the time such election is made (but any subsequent improvement
in the applicable financial ratio or test may be utilized by the Parent Borrower or any Restricted Subsidiary). For the avoidance of
doubt, if the Parent Borrower shall have elected the option set forth in clause (x) of any of the preceding clauses (1),
(2) or (3) in respect of any transaction, then the Parent Borrower shall be permitted to consummate such transaction even
if any applicable test or condition shall cease to be satisfied subsequent to the Parent Borrower’s election of such option. The
provisions of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f)
[Reserved].
(g)
Notwithstanding anything to the contrary herein, unless the Parent Borrower otherwise notifies the Administrative Agent, with
respect to any amounts incurred under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility
or any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including Section
6.01(x) (as it relates to the incurrence of any “fixed” or similar amount incurred under any Second Lien Facility)) that
does not require compliance with a financial ratio or financial test (including any First Lien Leverage Ratio test, any Secured Leverage
Ratio test, any Total Leverage Ratio test and/or any 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 (including Section 6.01(x) (as it relates to the incurrence of any “incurrence based”
or similar amount incurred under any Second Lien Facility)) that requires compliance with a financial ratio or financial test (including
any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio
test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (A) the incurrence of the
Incurrence-Based Amount shall be calculated first without giving effect to any Fixed Amount but giving full pro forma effect to the use
of proceeds of such Fixed Amount and the related transactions and (B) the incurrence of the Fixed Amount shall be calculated thereafter.
Unless the Parent Borrower elects otherwise, the Parent Borrower shall be deemed to have used amounts under an Incurrence-Based Amount
then available to the Parent Borrower prior to utilization of any amount under a Fixed Amount then available to the Parent Borrower.
For the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for purposes of calculating compliance
with Sections 6.04(a)(xiii), 6.04(b)(vii) and 6.06(dd)
(in each case, giving pro forma effect to the intended use of proceeds thereof).
(h)
The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date
shall be the principal amount thereof that would be shown on a balance sheet of the Parent Borrower dated such date prepared in accordance
with GAAP.
(i)
The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment
of interest or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the
amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be
deemed to be the granting of a Lien for purposes of Section 6.02.
(j)
For purposes of determining compliance with Section 6.01 or Section 6.02,
if any Indebtedness or Lien is incurred in reliance on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA,
and any refinancing or replacement thereof would cause the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based
on the Consolidated Adjusted EBITDA on the date of such refinancing or replacement, such percentage of Consolidated Adjusted
EBITDA will be
deemed not to be exceeded so long as the principal amount of such refinancing or replacement Indebtedness or other obligation does not
exceed an amount sufficient to repay the principal amount of such Indebtedness or other obligation being refinanced or replaced, except
by an amount equal to (x) unpaid accrued interest, penalties and premiums (including tender, prepayment or repayment premiums) thereon
plus underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial
yield payment) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional
amounts permitted to be incurred under Section 6.01.
(k)
Any financial ratios required to be maintained by the Parent Borrower 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 if there is no nearest number).
Section
1.05. Effectuation
of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made
after giving effect to the Transactions, unless the context otherwise requires.
Section
1.06. Timing
of Payment and 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. Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or
standard, as applicable).
Section
1.08. Currency
Equivalents Generally.
(a)
Notwithstanding anything to the contrary in clause (b) below, for purposes of any determination under Article
5, Article 6 (other than Section 6.15 and the calculation of compliance with
any financial ratio for purposes of taking any action hereunder) or Article 7 with respect to the amount
of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition, Sale and Lease-Back Transaction, affiliate
transaction or other transaction, event or circumstance, or any determination under any other provision of this Agreement (any of the
foregoing, a “relevant transaction”), in a currency other than Dollars, (i)
the Dollar equivalent amount of a relevant transaction in a currency other than Dollars shall be calculated based on the rate of exchange
quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate
does not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Parent Borrower) for such foreign currency, as in effect at 11:00 a.m. (London time)
on the date of such relevant transaction (which, in the case of any Restricted Payment, Restricted Debt Payment, Investment, Disposition
or incurrence of Indebtedness, shall be determined as set forth in Section 1.04(e)); provided, that
if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated
in a currency other than Dollars, and the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such Dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness
(and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness
being refinanced or replaced, except by an amount equal to (x)
unpaid accrued
interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts and other customary fees, commissions
and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such refinancing
or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section
6.01 and (ii) for the avoidance of doubt, no Default or Event of Default
shall be deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the time of any relevant
transaction so long as such relevant transaction was permitted at the time incurred, made, acquired, committed, entered or declared as
set forth in clause (i). For purposes of Section 6.15 and the calculation of compliance
with any financial ratio for purposes of taking any action hereunder (including for purposes of calculating compliance with the Incremental
Cap) on any relevant date of determination, amounts denominated in currencies other than Dollars shall be translated into Dollars at
the applicable currency exchange rate used in preparing the financial statements delivered pursuant to Sections 5.01(a)
or (b) (or, prior to the first such delivery, the financial statements referred to in Section
3.04), as applicable, for the relevant Test Period. Notwithstanding the foregoing or anything to the contrary herein, to the extent
that the Parent Borrower would not be in compliance with Section 6.15(a) if any Indebtedness denominated
in a currency other than Dollars were to be translated into Dollars on the basis of the applicable currency exchange rate used in preparing
the financial statements delivered pursuant to Section 5.01(a) or (b), as applicable,
for the relevant Test Period, but would be in compliance with Section 6.15(a) if such Indebtedness that is
denominated in a currency other than in Dollars were instead translated into Dollars on the basis of the average relevant currency exchange
rates over such Test Period (taking into account the currency translation effects, determined in accordance with GAAP, of any Hedge Agreement
permitted hereunder in respect of currency exchange risks with respect to the applicable currency in effect on the date of determination
for the Dollar equivalent amount of such Indebtedness), then, solely for purposes of compliance with Section
6.15(a), the First Lien Leverage Ratio as of the last day of such Test Period shall be calculated on the basis of such average relevant
currency exchange rates.
(b)
Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from
time to time specify with the Parent Borrower’s consent to appropriately reflect a change in currency of any country and any relevant
market convention or practice relating to such change in currency.
Section
1.09. 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, Replacement
Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving 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
1.10. Alternative
Currencies.
(a)
The Parent Borrower may from time to time request that Revolving Loans be made and/or Letters of Credit be issued in a currency
other than Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available
and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Revolving Loans,
such request shall be subject to the approval of the Revolving Lenders of the applicable Class that will provide such Loans, and in the
case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the applicable
Issuing Banks, in each case as set forth in Section 9.02(b)(ii)(E).
(b)
Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten Business Days prior to the requested
date of the making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Banks, in its or their sole discretion).
In the case of any such request pertaining Revolving Loans, the Administrative Agent shall promptly notify each Revolving Lender thereof;
and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the applicable Issuings
Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to Revolving Loans) or each applicable Issuing
Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., five
Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Revolving Loans or the issuance
of Letters of Credit, as the case may be, in such requested currency.
(c)
Any failure by a Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified
in the preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit Revolving
Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the applicable Revolving
Lenders consent to making Adjusted Term SOFR Rate Revolving Loans or issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify the Parent Borrower and the Parent Borrower and the Revolving Lenders shall amend this Agreement and the other
Loan Documents as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in accordance with Section
9.02(b)(ii)(E). If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section
1.10, the Administrative Agent shall promptly so notify the Parent Borrower.
Section
1.11. Benchmark
Replacement Setting.
(a)
Replacing Benchmarks. Solely to the extent set forth in clause (f) below, notwithstanding anything
to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have
occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (i) 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 (ii) 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 on which 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
of each Class.
(b)
Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative
Agent, in consultation with the Parent Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time
and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement
Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan
Document.
(c)
Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Parent Borrower
and the Lenders of (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation
of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement
of any tenor of a Benchmark pursuant to clause (d) below and (v) the commencement or conclusion of any Benchmark
Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent (or the Administrative Agent
together with the Parent Borrower where so specified) 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 1.11.
(d)
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 or will be no longer representative, then the Administrative
Agent may modify the definition of “Interest Period” 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 or will no longer be representative for
a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period”
for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e)
Disclaimer and Exculpation With Respect to Replacement Rates and any Benchmark. 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 the Adjusted Term SOFR Rate, Daily Simple SOFR, any other Benchmark, or any component
definition thereof or rates referred to in the definition thereof, or any alternative, comparable, replacement or successor rate thereto,
including whether the composition or characteristics of any such alternative, comparable, replacement or successor rate will be similar
to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Adjusted Term SOFR Rate, Daily
Simple SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of
any Benchmark Replacement Conforming Changes or other conforming changes made to this Agreement or any other Loan Document to implement
any replacement of the aforementioned benchmark rates.
(f)
Benchmark Unavailability Period. Upon the Parent Borrower’s receipt of notice of the commencement of a Benchmark
Unavailability Period, the Parent Borrower may revoke any request for an Adjusted Term SOFR Rate Borrowing of, conversion to or continuation
of Adjusted Term SOFR Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the
Parent Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During
any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component
of the Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in
any determination of the Alternate Base Rate. Furthermore, if any Adjusted Term SOFR Rate Borrowing is outstanding on the date of the
Parent Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable
to such Adjusted Term SOFR Rate
Borrowing, then
until such time as a Benchmark Replacement is implemented pursuant to this Section 1.11, (A) any Adjusted
Term SOFR Rate Borrowing shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if
such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Section
1.12. Additional
Borrowers; Parent Borrower as Representative.
(a)
From time to time on or after the Amendment No. 8 Effective Date, and with at least five Business Days’ notice to the Administrative
Agent (or such shorter period as the Administrative Agent may agree), subject to completion of customary “know your customer”
procedures and delivery of related information reasonably requested by the Administrative Agent, including information required pursuant
to Section 9.16, the Parent Borrower may designate any Restricted Subsidiary as an additional Borrower (each
such person, an “Additional Borrower”) hereunder in respect of any specified Class or Classes of Obligations; provided
that (i) the Additional Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District
of Columbia and (ii) the Additional Borrower shall expressly assume the Obligations of a Borrower in a manner and pursuant to documentation
reasonably satisfactory to the Administrative Agent (it being understood that an Additional Borrower may be designated as such pursuant
to the terms of any Incremental Facility Amendment, Refinancing Amendment or Extension Amendment) (any such documentation, an “Additional
Borrower Agreement”). Upon satisfaction of such requirements, the Additional Borrower shall be a “Borrower” hereunder
and will have the right to request Term Loans, Revolving Loans or Letters of Credit, as the case may be, in each case of the applicable
Class, in accordance with Article 2 hereof until the earlier to occur of the applicable Maturity Date or
the date on which such Additional Borrower resigns as an Additional Borrower in accordance with clause (b) below.
(b)
An Additional Borrower may elect to resign as an Additional Borrower; provided that: (i)
such resigning Additional Borrower has delivered to the Administrative Agent a written notice of resignation at least five Business Days
in advance and (ii) either (A)
such resigning Additional Borrowers’ obligations in its capacity as Subsidiary Guarantor shall continue to be legal, valid, binding
and enforceable after giving effect to such resignation or (B) such resigning
Additional Borrower is released from its obligations as a Subsidiary Guarantor pursuant to Section 9.22 substantially
concurrently with such resignation pursuant to the Loan Documents. Upon satisfaction of such requirements, the applicable Additional
Borrower shall cease to be an Additional Borrower and a Borrower (but in the case of a resignation pursuant to clause (A)
above shall continue to be a Subsidiary Guarantor) and at the request of the Parent Borrower any Promissory Note in respect of such
Additional Borrower shall be returned by the holder thereof to such Additional Borrower for cancellation.
(c)
Each Borrower from time to time hereby designates the Parent Borrower as its agent and representative. The Parent Borrower may
act as the agent and/or representative of any Borrower for the purposes of (i)
delivering Borrowing Requests, continuation or conversion notices and other notices pursuant to Article 2
hereof (and for the purpose of giving instructions with respect to the disbursement of the proceeds of any Loans or the issuance of any
Letters of Credit), (ii) delivering and receiving all other notices, consents,
certificates and similar instruments contemplated hereunder or under any of the other Loan Documents and (iii)
taking all other actions (including in respect of compliance with covenants and certifications) on behalf of any Borrower under any Loan
Document. The Parent Borrower hereby accepts such appointment.
Article
2 THE
CREDITS
Section
2.01. Commitments.
(a)
Subject to the terms and conditions set forth herein, (i) (x) each Initial Term Lender severally, and not jointly, agrees to make
Initial Term Loans to the applicable Borrowers on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan
Commitment as of the Closing Date and (y) each Amendment No. 1 Incremental Term Lender severally, and not jointly, agrees to make Amendment
No. 1 Incremental Term Loans to the applicable Borrowers on the Amendment No. 1 Effective Date in a principal amount not to exceed its
Initial Term Loan Commitment as of the Amendment No. 1 Effective Date and (ii) (x) each Initial Revolving Lender severally, and not jointly,
agrees to make Initial Revolving Loans to the applicable Borrowers in Dollars at any time and from time to time on and after the Closing
Date, and until the earlier of the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving Credit Commitment
of such Initial Revolving Lender in accordance with the terms hereof; provided that, after giving effect to any Borrowing of Initial
Revolving Loans, the Outstanding Amount of such Initial Revolving Lender’s Initial Revolving Credit Exposure shall not exceed such
Initial Revolving Lender’s Initial Revolving Credit Commitment and (y) each Amendment No. 6 Replacement and Incremental Revolving
Lender severally, and not jointly, agrees to make Amendment No. 6 Replacement and Incremental Revolving Loans to the applicable Borrowers
in Dollars at any time and from time to time on and after the Amendment No. 6 Effective Date, and until the earlier of the Amendment
No. 6 Replacement and Incremental Revolving Credit Maturity Date and the termination of the Amendment No. 6 Replacement and Incremental
Revolving Credit Commitment of such Amendment No. 6 Replacement and Incremental Revolving Lender in accordance with the terms hereof;
provided that, after giving effect to any Borrowing of Amendment No. 6 Replacement and Incremental Revolving Loans, the Outstanding
Amount of such Amendment No. 6 Replacement and Incremental Revolving Lender’s Amendment No. 6 Replacement and Incremental Revolving
Credit Exposure shall not exceed such Amendment No. 6 Replacement and Incremental Revolving Lender’s Amendment No. 6 Replacement
and Incremental Revolving Credit Commitment. Subject to the terms and conditions set forth in Amendment No. 2 (x) each Converting Lender
(as defined in Amendment No. 2) severally, and not jointly, agreed to exchange its Existing Term Loans (as defined in Amendment No. 2)
for a like principal amount of Amendment No. 2 Term Loans on the Amendment No. 2 Effective Date (or such lesser amount allocated to such
Lender by the Administrative Agent) and (y) each Amendment No. 2 Term Lender severally, and not jointly, agreed to make Amendment No.
2 Term Loans to the applicable Borrowers on the Amendment No. 2 Effective Date in a principal amount not to exceed its Amendment No.
2 Term Loan Commitment as of the Amendment No. 2 Effective Date. Subject to the terms and conditions set forth herein, each Amendment
No. 3 Incremental Term Lender severally, and not jointly, agreed to make Amendment No. 3 Incremental Term Loans to the applicable Borrowers
on the Amendment No. 3 Effective Date in a principal amount not to exceed its Amendment No. 3 Incremental Term Loan Commitment as of
the Amendment No. 3 Effective Date. Subject to the terms and conditions set forth in Amendment No. 8 (x) each Converting Lender (as defined
in Amendment No. 8) severally, and not jointly, agreed to exchange its Existing Term Loans (as defined in Amendment No. 8) for a like
principal amount of Amendment No. 8 Term Loans on the Amendment No. 8 Effective Date (or such lesser amount allocated to such Lender
by the Administrative Agent) and (y) each Amendment No. 8 Term Lender severally, and not jointly, agreed to make Amendment No. 8 Term
Loans to the applicable Borrowers on the Amendment No. 8 Effective Date in a principal amount not to exceed its Amendment No. 8 Term
Loan Commitment as of the Amendment No. 8 Effective Date. Subject to the terms and conditions set forth herein, each Amendment No. 9
Incremental Term Lender severally, and not jointly, agreed to make Amendment No. 9 Incremental Term Loans to the applicable Borrowers
on the Amendment No. 9 Effective Date in a principal amount not to exceed its Amendment No. 9 Incremental Term Loan Commitment as of
the Amendment No. 9 Effective Date. The Amendment No. 9 Incremental Term Loans (if and when funded) shall have the same terms and conditions
as, and shall be treated as a single Class with, the Amendment No. 8 Term Loans (it being understood, for the avoidance of doubt, that
interest shall accrue on the Amendment No. 9 Incremental Term Loans from the date of funding thereof). Within the foregoing limits and
subject to the terms, conditions and limitations set forth herein, the applicable Borrowers may borrow, pay or prepay and reborrow Revolving
Loans. Amounts paid or prepaid in respect of the Initial Term Loans, Amendment No. 2 Term Loans, Amendment No. 3 Incremental
Term Loans, Amendment
No. 8 Term Loans or Amendment No. 9 Incremental Term Loans may not be reborrowed.
(b)
Subject to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental
Facility Amendment, each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional
Loans of such Class to the Borrowers, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional
Commitment of such Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment.
Section
2.02. Loans
and Borrowings.
(a)
Each Loan (other than a Swingline 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. Each Swingline Loan shall be made in
accordance with the procedures set forth in Section 2.04.
(b)
Subject to Section 2.01 and Section 2.14, each Borrowing in Dollars shall
be comprised entirely of ABR Loans or Adjusted Term SOFR Rate Loans as the Borrowers may request in accordance herewith; provided
that each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any Adjusted Term SOFR Rate 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 Borrowers to repay such Loan in accordance with the terms of this
Agreement, (ii) such Adjusted Term SOFR Rate Loan shall be deemed to have been
made and held by such Lender, and the obligation of the Borrowers to repay such Adjusted Term SOFR Rate 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 Borrowers 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 any such domestic or foreign branch or Affiliate of such Lender shall not
be entitled to any greater indemnification under Section 2.17 with respect to such Adjusted Term SOFR Rate
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 a Change in Law after the date on which such Loan was made).
(c)
At the commencement of each Interest Period for any Adjusted Term SOFR Rate Borrowing, such Borrowing shall comprise an aggregate
principal amount that is an integral multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum
principal amount of $100,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x)
equal to the entire aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.05(e). 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 10 different Interest Periods in effect for Adjusted
Term SOFR Rate Borrowings at any time outstanding (or such greater number of different Interest Periods as the Administrative Agent may
agree from time to time).
(d)
Notwithstanding any other provision of this Agreement, no Borrower shall, nor shall it be entitled to, request, or to elect to
convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable
to such Loans.
Section 2.03.
Requests for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Adjusted
Term SOFR Rate Loans shall be made upon irrevocable notice by a Borrower to the Administrative Agent (provided that notices in
respect of any Borrowings (x) to be made on the Closing Date may be conditioned on the closing of the Acquisition and (y) to be made
in connection with any acquisition, Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned
on the closing of such acquisition, Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice
must be in writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand delivery,
fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i) three Business
Days prior to the requested day of any Borrowing of, conversion to or continuation of Adjusted Term SOFR Rate Loans (or one Business
Day in the case of any Borrowing of Adjusted Term SOFR Rate Loans to be made on the Closing Date) and (ii) on the requested date of any
Borrowing of or conversion to ABR Loans (other than Swingline Loans) (or, in each case, such later time as shall be acceptable to the
Administrative Agent); provided, however, that if a Borrower wishes to request Adjusted Term SOFR Rate Loans having an
Interest Period of other than one, three or six months in duration as provided in the definition of “Interest Period,” (A)
the applicable notice from the Parent Borrower must be received by the Administrative Agent not later than 11:00 a.m. four Business Days
prior to the requested date of such Borrowing, conversion or continuation (or such later time as is acceptable to the Administrative
Agent), whereupon the Administrative Agent shall give prompt notice to the appropriate Lenders of such request and determine whether
the requested Interest Period is acceptable to them and (B) not later than 10:00 a.m. three Business Days before the requested date of
such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrowers whether or not the requested Interest
Period has been consented to by all the appropriate Lenders. Each written notice (or confirmation of telephonic notice) with respect
to a Borrowing pursuant to this Section 2.03 shall be delivered to the Administrative Agent in the form of
a written Borrowing Request, appropriately completed and signed by a Responsible Officer of a Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with Section 2.02:
(a)
the Class of such Borrowing;
(b)
the aggregate amount of the requested Borrowing;
(c)
the date of such Borrowing, which shall be a Business Day;
(d)
whether such Borrowing is to be an ABR Borrowing or an Adjusted Term SOFR Rate Borrowing;
(e)
in the case of an Adjusted Term SOFR Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”; and
(f)
the location and number of the Borrowers’ account or any other designated account(s) to which funds are to be disbursed
(the “Funding Account”).
If
no election as to the Type of a Borrowing in Dollars is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Adjusted Term SOFR Rate Borrowing, then the Borrowers shall be deemed to have selected
an Interest Period of one month’s duration. The Administrative Agent shall advise each Lender of the details thereof and of the
amount of the Loan to be made as part of the requested Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt
of a Borrowing Request in accordance with this Section or (y) in the case of any
Adjusted Term SOFR
Rate Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance with this Section.
Section
2.04. Swingline
Loans.
(a)
Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to a Borrower from time
to time during the Availability Period, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided
that (x) the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline Loan and (y)
after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall
not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $100,000
or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, a Swingline Loan
may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit Commitments or
(y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within
the foregoing limits and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed.
To request a Swingline Loan, a Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent) of such request by
telephone (confirmed by facsimile), not later than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable
and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Swingline Lender
shall make each Swingline Loan available to the applicable Borrower on a same Business Day by means of a credit to the Funding Account
or otherwise in accordance with the instructions of such Borrower (including, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank).
(b)
The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require
the Revolving Lenders to acquire participations on the second Business Day following receipt of such notice in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such
notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely
and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of
the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.07 with respect to Revolving Loans made by such Revolving Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section
2.04(b)), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving
Lenders. The Administrative Agent shall notify the Borrowers of any participation in any Swingline Loan acquired pursuant to this Section
2.04(b), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline
Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of any
Swingline Loan after receipt by the Swingline Lender of the proceeds of any sale of participations therein shall be promptly remitted
by the Swingline Lender to the Administrative Agent and any such amounts received by the Administrative Agent shall be promptly remitted
by the
Administrative
Agent to the Revolving Lenders that have made their payments pursuant to this Section 2.04(b) and to the
Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender
or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be
refunded to the Borrowers for any reason. The purchase of participations in any Swingline Loan pursuant to this Section
2.04(b) shall not relieve the Borrowers of any default in the payment thereof.
(c)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount
required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by
the time specified in Section 2.04(b), the Swingline Lender shall be entitled to recover from such Revolving
Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater
of the Federal Funds Effective Rate from time to time in effect and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation. A certificate of the Swingline Lender submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (c) shall be conclusive absent manifest
error.
Section
2.05. Letters
of Credit.
(a)
General.
(i)
Subject to the terms and conditions set forth herein, (ii) each Issuing
Bank agrees, in each case in reliance upon the agreements of the other Revolving Lenders set forth in this Section
2.05, (A) from time to time on any Business Day during the period from the
Closing Date to the fifth Business Day prior to the Amendment No. 6 Replacement and Incremental Revolving Credit Maturity Date, upon
the request of a Borrower, to issue Letters of Credit issued on sight basis only for the account of a Borrower (or any Restricted Subsidiary;
provided that a Borrower will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance
with Section 2.05(b), and (B) to honor drafts
under the Letters of Credit, and (iii) the Revolving Lenders severally agree
to participate in the Letters of Credit issued pursuant to Section 2.05(d). Notwithstanding anything
to the contrary contained in this Agreement, no Issuing Bank shall be required to issue Commercial Letters of Credit without its consent.
(ii)
No Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment
or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing
such Letter of Credit, (y) customary “know your customer” requirements of such Issuing Bank with respect to the beneficiary
of such Letter of Credit would be violated or (z) any law applicable to such Issuing Bank or any directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank
refrain from, the issuance of letters of credit generally or such Letter of Credit in particular.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, a
Borrower shall deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested
date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made on
the Closing Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it is
being issued under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal of
a Letter of Credit (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)), a Borrower
shall submit such a request to the applicable
Issuing Bank selected
by such Borrower (with a copy to the Administrative Agent) at least three Business Days in advance of the requested date of amendment,
extension or renewal (or such shorter period as is acceptable to the applicable Issuing Bank), identifying the Letter of Credit to be
amended, extended or renewed, and specifying the proposed date (which shall be a Business Day) and other details of the amendment, extension
or renewal. Requests for the issuance, amendment, extension or renewal of any Letter of Credit must be accompanied by such other information
as shall be necessary to issue, amend, extend or renew such Letter of Credit. If requested by the applicable Issuing Bank, a Borrower
also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter
of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by a Borrower to, or entered into by a Borrower with, the applicable Issuing
Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter of Credit, letter of credit
application or other document entered into by a Borrower with the applicable Issuing Bank relating to any Letter of Credit shall contain
any representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent inconsistent herewith
shall be rendered null and void or reformed automatically without further action by any Person to conform to the terms of this Agreement),
and all representations and warranties, covenants and events of default set forth therein shall contain standards, qualifications, thresholds
and exceptions for materiality or otherwise consistent with those set forth in this Agreement (and, to the extent inconsistent herewith,
shall be deemed to automatically incorporate the applicable standards, qualifications, thresholds and exceptions set forth herein without
action by any Person). A Letter of Credit may be issued, amended, extended or renewed only if (and on the issuance, amendment, extension
or renewal of each Letter of Credit the Borrowers shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment, extension or renewal, (A) the sum of (x) the aggregate outstanding principal amount of all Revolving Loans and Swingline Loans
plus (y) the aggregate amount of all LC Exposures would not exceed the Total Revolving Credit Commitment and (B) the LC Exposure
does not exceed the Letter of Credit Sublimit (unless otherwise increased). In addition, no Issuing Bank shall be required to issue,
amend, extend or renew any Letter of Credit if the terms of such Letter of Credit extend beyond the Maturity Date applicable to the Revolving
Credit Commitments of any Class unless (1) the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such
Maturity Date does not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in
effect after such Maturity Date, (2) all Revolving Lenders and such Issuing Bank shall have consented to such expiry date or (3) 100%
of the then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter of Credit is issued,
amended, extended or renewed beyond such date. Promptly after the 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 Issuing Bank will also deliver to the Borrowers
and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. Upon receipt of such Letter of Credit or
amendment, the Administrative Agent shall notify the Revolving Lenders, in writing, of such Letter of Credit or amendment, and if so
requested by a Revolving Lender, the Administrative Agent will provide such Revolving Lender with copies of such Letter of Credit or
amendment.
(c)
Expiration Date.
(i)
Except as set forth in Section 2.05(b) (above), no Standby Letter of Credit shall expire later
than the earlier of (A) the date that is one year after the date of the issuance
of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank may agree) and (B)
the Latest Revolving Loan Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic extension thereof
for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the date referred
to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized
or backstopped on or before the date that such Letter of Credit is extended beyond the date referred
to in
clause (B) above pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank).
(ii)
Except as set forth in Section 2.05(b) (above), no Commercial Letter of Credit shall expire
later than the earlier to occur of (A) one year after the issuance thereof (or
such later date to which the relevant Issuing Bank may agree) and (B) the Latest
Revolving Loan Maturity Date; provided that any Commercial Letter of Credit may provide for the automatic extension thereof for
any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the date referred
to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized
or backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B)
above pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank).
(d)
Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof)
and without any further action on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby
grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement
made by such Issuing Bank and not reimbursed by the Borrowers on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrowers for any reason. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or Event of Default or reduction or termination of the Revolving Credit Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e)
Reimbursement.
(i)
If the applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrowers shall reimburse such
LC Disbursement by paying to the Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank)
an amount equal to such LC Disbursement not later than 1:00 p.m. on the second Business Day immediately following the date on which the
Borrowers receive notice under paragraph (g) of this Section of such LC Disbursement (or, if such notice
is received less than two hours prior to the deadline for requesting ABR Borrowings pursuant to Section
2.03, on the third Business Day immediately following the date on which the Borrowers receive such notice); provided that
a Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Loan or a Swingline Loan and,
to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting Revolving
Loan Borrowing or Swingline Loan. If the Borrowers fails to make such payment when due, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from the Borrowers in respect thereof and such Revolving Lender’s
Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent
its Applicable Percentage of the payment then due from the Borrowers, in the same manner as provided in Section
2.07 with respect to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent
shall
promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrowers pursuant to this paragraph, the Administrative Agent shall distribute such payment
to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such
Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear.
(ii)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any
amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section
2.05(e) by the time specified therein, such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds
Effective Rate from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation. A certificate of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(f)
Obligations Absolute. The Borrowers’ obligation to reimburse LC Disbursements as provided in paragraph (e)
of this Section shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of (i)
any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein or herein, (ii)
any draft or other document presented under any Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by the applicable
Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such
Letter of Credit or (iv) any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge
of, or provide a right of setoff against, any Borrower’s obligations hereunder. Neither the Administrative Agent, the Revolving
Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery
of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing
Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank from liability to any Borrower to the extent
of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Parent Borrower to the
extent permitted by applicable law) suffered by any Borrower that are caused by such Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of applicable Issuing Bank (as finally determined
by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance
of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms
of such Letter of Credit.
(g)
Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent
and the Borrowers by telephone (confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make
an LC Disbursement thereunder; provided that no failure to give or delay in giving such notice shall relieve any Borrower of its
obligation to reimburse such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h)
Interim Interest. If any Issuing Bank makes any LC Disbursement, then, unless a Borrower reimburses such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that a Borrower reimburses such LC Disbursement (or the date on which such
LC Disbursement is reimbursed with the proceeds of Loans, as applicable), at the rate per annum then applicable to Revolving Loans that
are ABR Loans; provided that if any Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e)
of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving
Lender to the extent of such payment.
(i)
Replacement of an Issuing Bank or Addition of New Issuing Banks.
Any
Issuing Bank may be replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), the Parent Borrower
and the successor Issuing Bank at any time by written agreement among the Parent Borrower, the Administrative Agent and the successor
Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any
such replacement becomes effective, a Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.12(b)(ii). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the
term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and
all previous Issuing Banks, as the context shall require. After the replacement of any Issuing Bank hereunder, the replaced Issuing Bank
shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit after such
replacement. The Parent Borrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld or delayed) and the relevant Revolving Lender, designate one or more additional Revolving Lenders to act
as an issuing bank under the terms of this Agreement. Any Revolving Lender designated as an issuing bank pursuant to this paragraph
(i) shall be deemed to be an “Issuing Bank” (in addition to being a Revolving Lender) in respect
of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to such Letters of Credit, such term shall thereafter
apply to the other Issuing Bank and such Revolving Lender.
(j)
Cash Collateralization.
(i)
If any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article
7 hereof, then on the Business Day that the Parent Borrower receives notice from the Administrative Agent at the direction of the
Required Lenders demanding the deposit of Cash collateral pursuant to this paragraph (j), upon such demand,
a Borrower shall deposit, in an interest-bearing account with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Revolving Lenders (the “LC Collateral
Account”),
an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit in the LC Collateral Account);
provided that the obligation to deposit such Cash collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to
a Borrower described in Section 7.01(f) or (g).
(ii)
Any such deposit under clause (i) above shall be held by the Administrative Agent as collateral for
the payment and performance of the Secured Obligations in accordance with the provisions of this paragraph (j).
The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account, and
each Borrower hereby grants the Administrative Agent, for the benefit of the Secured Parties, a First Priority security interest in the
LC Collateral Account. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of each Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required Revolving Lenders) be
applied to satisfy other Secured Obligations. If a Borrower is required to provide an amount of Cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (together with all interest and other earnings with respect thereto, to the extent
not applied as aforesaid) shall be returned to such Borrower promptly but in no event later than three Business Days after such Event
of Default has been cured or waived.
(k)
Existing Letters of Credit. Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement,
without need for any further action by any Borrower or any other Person.
Section
2.06. [Reserved].
Section
2.07. Funding
of Borrowings.
(a)
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available
funds by 1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders
in an amount equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the Borrowers by promptly crediting
the amounts so received, in like funds, to the Funding Account or as otherwise directed by a Borrower; provided that Revolving
Loans made to finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted
by the Administrative Agent to the applicable Issuing Bank.
(b)
Unless the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and
may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such event, if any Lender has not in
fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrowers severally
agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the Borrowers 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 a Borrower, the interest rate applicable to the Loans comprising
such Borrowing at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s
Loan included in such Borrowing and the Borrowers’ obligation to repay the Administrative Agent such corresponding amount pursuant
to this Section 2.07(b) shall cease. If a Borrower pays such amount to the Administrative Agent, the amount
so paid shall constitute a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower or any other Loan Party
may have against any Lender as a result of any default by such Lender hereunder.
Section
2.08. Type;
Interest Elections.
(a)
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of an Adjusted Term
SOFR Rate Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, a Borrower may elect to
convert any Borrowing to a Borrowing of a different Type or to continue such Borrowing and, in the case of an Adjusted Term SOFR Rate
Borrowing, may elect Interest Periods therefor, all as provided in this Section. A 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 based upon
their Applicable Percentages and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Loans, which may not be converted or continued.
(b)
To make an election pursuant to this Section, a Borrower shall notify the Administrative Agent of such election either in writing
(by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the
time that a Borrowing Request would be required under Section 2.03 if a Borrower were requesting a Borrowing
of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf”
or “.tif”) to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of such Borrower.
(c)
Each telephonic and written Interest Election Request shall specify the following information in compliance with Section
2.02:
(i)
the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant
to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii)
the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or an Adjusted Term SOFR Rate Borrowing; and
(iv)
if the resulting Borrowing is an Adjusted Term SOFR 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 an Adjusted Term SOFR Rate Borrowing but does not specify an Interest Period, then such Borrower shall be deemed
to have selected an Interest Period of one month’s duration.
(d)
Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the
details thereof and of such Lender’s portion of each resulting Borrowing.
(e)
If a Borrower fails to deliver a timely Interest Election Request with respect to an Adjusted Term SOFR Rate Borrowing prior to
the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be
converted at the end of such Interest Period to an Adjusted Term SOFR Rate Borrowing with an Interest Period of one month. Notwithstanding
any contrary provision hereof, if an Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so
notifies the Parent Borrower, then, so long as such Event of Default exists (i)
no outstanding Borrowing may be converted to or continued as an Adjusted Term SOFR Rate Borrowing and (ii)
unless repaid, each Adjusted Term SOFR Rate Borrowing shall be converted to an ABR Borrowing at the end of the then-current Interest
Period applicable thereto.
Section
2.09. Termination
and Reduction of Commitments.
(a)
The Initial Revolving Credit Commitments were terminated on the Amendment No. 6 Effective Date. Unless previously terminated,
(i) the Initial Term Loan Commitments on the Closing Date shall automatically
terminate upon the making of the Initial Term Loans on the Closing Date, (ii)
the Initial Term Loan Commitments on the Amendment No. 1 Effective Date shall automatically terminate upon the making of the Amendment
No. 1 Incremental Term Loans on the Amendment No. 1 Effective Date, (iii) the Amendment No. 2 Term Loan Commitments on the Amendment
No. 2 Effective Date shall automatically terminate upon the making of the Amendment No. 2 Term Loans on the Amendment No. 2 Effective
Date, (iv) the Amendment No. 3 Incremental Term Loan Commitments on the Amendment No. 3 Effective Date shall automatically terminate
upon the making of the Amendment No. 3 Incremental Term Loans on the Amendment No. 3 Effective Date, (v) the Amendment No. 6 Replacement
and Incremental Revolving Credit Commitments shall automatically terminate on the Amendment No. 6 Replacement and Incremental Revolving
Credit Maturity Date, (vi) the Amendment No. 8 Term Loan Commitments on the Amendment No. 8 Effective Date shall automatically terminate
upon the making of the Amendment No. 8 Term Loans on the Amendment No. 8 Effective Date, (vii) the Amendment No. 9 Incremental Term Loan
Commitments on the Amendment No. 9 Effective Date shall automatically terminate upon the making of the Amendment No. 9 Incremental Term
Loans on the Amendment No. 9 Effective Date, (viii) the Additional Term Loan Commitments of any Class shall automatically terminate upon
the making of the Additional Term Loans of such Class and, if any such Additional Term Loan Commitment is not drawn on the date that
such Additional Term Loan Commitment is required to be drawn pursuant to the applicable Refinancing Amendment, Extension Amendment or
Incremental Facility Amendment, the undrawn amount thereof shall terminate unless otherwise provided in the applicable Refinancing Amendment,
Extension Amendment or Incremental Facility Amendment and (ix) any other Additional Revolving Credit Commitments of any Class shall automatically
terminate on the Maturity Date specified therefor in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment.
(b)
Upon delivering the notice required by Section 2.09(c), a Borrower may at any time terminate or from
time to time reduce the Revolving Credit Commitments of any Class; provided that (i)
each reduction of the Revolving Credit Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000 and
not less than $1,000,000 and (ii) a Borrower shall not terminate or reduce the
Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and any concurrent
prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving
Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided
that, after the establishment of any Additional Revolving Credit Commitment, any such
termination or
reduction of the Revolving Credit Commitments of any Class shall be subject to the provisions set forth in Section
2.22, 2.23 and/or 9.02, as applicable.
(c)
A Borrower shall notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit
Commitments under paragraph (b) of this Section (as selected by such Borrower) not later than 11:00 a.m. on
or prior to the effective date of such termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to
the effective date of such termination or reduction in the case of a termination or reduction involving a prepayment of Adjusted Term
SOFR Rate Borrowings (or such later date to which the Administrative Agent may agree)), specifying such election and the effective date
thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Revolving Lenders of each applicable
Class or Classes of the contents thereof. Each notice delivered by a Borrower pursuant to this Section shall be irrevocable; provided
that any such notice may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice
may be revoked or its effectiveness deferred by such Borrower (by notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of any Revolving Credit Commitment pursuant to this Section
2.09 shall be permanent. Upon any reduction of any Revolving Credit Commitment, the Revolving Credit Commitment of each Revolving
Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable Percentage of such reduction amount.
Section
2.10. Repayment
of Loans; Evidence of Debt.
(a)
The Borrower of Amendment No. 8 Term Loans hereby unconditionally promises to repay the outstanding principal amount of the Amendment
No. 8 Term Loans to the Administrative Agent for the account of each applicable Term Lender (i)
commencing on or about September 29, 2023, on the last Business Day of each March, June, September and December prior to the Amendment
No. 8 Term Loan Maturity Date (each such date being referred to as a “Loan Installment Date”), in each case in an
amount equal to $2,875,000 (as such payments may be reduced from time to time as a result of the application of prepayments in accordance
with Section 2.11 and purchases or assignments in accordance with Section 9.05(g)
or increased as a result of any increase in the amount of such Amendment No. 8 Term Loans pursuant to Section
2.22(a)) and (ii) on the Amendment No. 8 Term Loan Maturity Date, in an
amount equal to the remainder of the principal amount of the Amendment No. 8 Term Loans outstanding on such date, together in each case
with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. The applicable Borrowers
shall repay the Additional Term Loans of any Class in such scheduled amortization installments and on such date or dates as shall be
specified therefor in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment (as such payments may
be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11 and purchases
or assignments in accordance with Section 9.05(g) or increased as a result of any increase in the amount
of such Additional Term Loans pursuant to Section 2.22(a)).
(b)
Each Borrower of Revolving Loans or Swingline Loans, as the case may be hereby unconditionally promises to pay (i)
to the Administrative Agent for the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan on the Amendment
No. 6 Replacement and Incremental Revolving Credit Maturity Date and (ii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of (x) the 10th Business Day following the
incurrence of such Swingline Loan and (y) the Amendment No. 6 Replacement and Incremental Revolving Credit Maturity Date. On the Amendment
No. 6 Replacement and Incremental Revolving Credit Maturity Date, the applicable Borrowers shall (A)
cancel and return all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of Credit, furnish to the
Administrative Agent a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of credit) equal
to 100% of the
LC Exposure (minus
the amount then on deposit in the LC Collateral Account) as of such date) and (B) make
payment in full in Cash of all accrued and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving
Facility then due, together with accrued and unpaid interest (if any) thereon.
(c)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers
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.
(d)
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 (if any) applicable thereto, (ii)
the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders or the Issuing Bank and each Lender’s share or the Issuing Bank’s share thereof.
(e)
The entries made in the accounts maintained pursuant to paragraphs (c) or (d)
of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein (absent manifest error);
provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any manifest error therein shall
not in any manner affect the obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement; provided,
further, that in the event of any inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph
(d) of this Section and any Lender’s records, the accounts of the Administrative Agent shall govern.
(f)
Any Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the applicable Borrowers shall
prepare, execute and deliver to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood
and agreed that such Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the applicable
Borrowers in accordance with Section 9.05(b)(iii) and upon the occurrence of the Termination Date (or as
promptly thereafter as practicable). If any Lender loses the original copy of its Promissory Note, it shall execute an affidavit of loss
containing a customary indemnification provision that is reasonably satisfactory to the applicable Borrowers. The obligation of each
Lender to execute an affidavit of loss containing a customary indemnification provision that is reasonably satisfactory to the applicable
Borrowers shall survive the Termination Date.
Section
2.11. Prepayment
of Loans.
(a)
Optional Prepayments.
(i)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the
applicable Borrowers shall have the right at any time and from time to time to prepay any Borrowing of Term Loans of one or more Classes
(such Class or Classes to be selected by a Borrower in its sole discretion) in whole or in part without premium or penalty (but subject
to in the case of Amendment No. 8 Term Loans only, Section 2.12(f)). Each such prepayment shall be
paid to the Lenders in accordance with their respective Applicable Percentages of the relevant Class.
(ii)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the
applicable Borrowers shall have the right at any time and from time to time to prepay any Borrowing of Revolving Loans of any Class or
any Borrowing of Swingline Loans, including any
Additional
Revolving Loans, in whole or in part without premium or penalty. Prepayments made pursuant to this Section
2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC Disbursements and second, shall be applied
ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii)
A Borrower shall notify the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender)
by telephone (confirmed in writing) of any prepayment under this Section 2.11(a) (A)
in the case of a prepayment of an Adjusted Term SOFR Rate Borrowing, not later than 1:00 p.m. three Business Days before the date of
prepayment, (B) in the case of a prepayment of an ABR Borrowing, not later than
1:00 p.m. on the date of prepayment or (C) in the case of a prepayment of a Swingline
Loan, not later than 1:00 p.m. on the date of prepayment (or, in each case, such later date or time to which the Administrative Agent
may reasonably agree). Each such notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify
the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment
delivered by a Borrower may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice
may be revoked by a Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is
not satisfied and/or a Borrower may delay or rescind such notice until such condition is satisfied. Promptly following receipt of any
such notice relating to any Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type and Class as provided
in Section 2.02(c) or such lesser amount that is then outstanding with respect to such Borrowing being
repaid. Each prepayment of Term Loans shall be applied to the Class of Term Loans as determined by the applicable Borrower (or Parent
Borrower) and specified in the applicable prepayment notice, and each prepayment of Term Loans of such Class made pursuant to this Section
2.11(a) shall be applied against the remaining scheduled installments of principal due in respect of the Term Loans of such Class
in the manner specified by such Borrower or, if not so specified on or prior to the date of such optional prepayment, in direct order
of maturity.
(b)
Mandatory Prepayments.
(i)
No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the
Parent Borrower are delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending
on or about June 30, 2019, the applicable Borrowers shall prepay Subject Loans in accordance with clause (vi)
below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A)
the Required Excess Cash Flow Percentage of Excess Cash Flow of the Parent Borrower and its Restricted Subsidiaries for the Excess Cash
Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment Amount”),
minus (B) at the option of the Parent Borrower, to the extent occurring
during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash
Flow payment), and without duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period), the following
(collectively, the “ECF Deductions”):
(1)
the aggregate principal amount of any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid
pursuant to Section 2.11(a);
(2)
(x) the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to be
incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu
with the Liens on the
Collateral
securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired and (y) the aggregate principal amount
of any loans under any Second Lien Facility (including any Incremental Loans and Additional Loans (as defined in the Second Lien Credit
Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a)
of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) (to the extent
the relevant voluntary prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of Incremental Equivalent
Debt and/or Replacement Debt (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)
secured on a pari passu basis with the Second Lien Facility voluntarily prepaid, repurchased, redeemed or otherwise retired (or
contractually committed to be prepaid, repurchased, redeemed or otherwise retired);
(3)
(1) the amount of any reduction in the outstanding amount of any Initial Term Loans, Additional Term Loans, Incremental Equivalent Debt,
Replacement Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent
secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Credit Facilities, resulting
from any purchase or assignment made in accordance with Section 9.05(g) of this Agreement (including in connection
with any Dutch Auction) (with respect to Initial Term Loans and/or Additional Term Loans) and any equivalent provisions with respect
to any Incremental Equivalent Debt, Replacement Debt and/or such other Indebtedness and/or (2) to the extent permitted by the terms of
this Agreement, the amount of any reduction in the outstanding amount of any loans under the Second Lien Facility and/or any “Incremental
Equivalent Debt”, “Replacement Debt” and/or other Indebtedness permitted to be incurred thereunder to the extent secured
by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Second Lien Facility (including any
reduction resulting from any purchase or assignment made in accordance with Section 9.05(g) of the Second
Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) (including in connection
with any Dutch Auction (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)) and
any equivalent provisions with respect to any such “Incremental Equivalent Debt”, “Replacement Debt” and/or such
other Indebtedness;
(4)
all Cash payments in respect of Capital Expenditures as would be reported in the Parent Borrower’s consolidated statement of cash
flows and all Cash payments made to acquire IP Rights;
(5)
Cash payments by the Parent Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including
for purposes of clarity, the current portion of such long-term liabilities) of the Parent Borrower and its Restricted Subsidiaries other
than Indebtedness, except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated
Adjusted EBITDA for such period;
(6)
Cash payments in respect of any Investment (including acquisitions) permitted by Section 6.06 or otherwise
consented to by the Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Parent Borrower or any Loan
Party) and/or any Restricted Payment permitted by Section 6.04(a) or otherwise consented to by the Required
Lenders;
(7)
the aggregate consideration (i) required to be paid in Cash by the Parent Borrower or its Restricted Subsidiaries pursuant to binding
contracts entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by
Section 6.06 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause
(6) above and/or (ii) otherwise committed or budgeted to be made in connection
with Capital Expenditures, acquisitions or Investments and/or Restricted Payments described in clause (6) above (clauses (i)
and (ii) of this clause (7), the “Scheduled Consideration”) (other than Investments in (x) Cash and Cash
Equivalents or (y) the Parent Borrower or any Loan Party) to be consummated or made during the period of four consecutive Fiscal Quarters
of the Parent Borrower following the end of such period; provided that to the extent the aggregate amount actually utilized to
finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent period of four consecutive
Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of
Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8)
Cash expenditures in respect of any Hedge Agreement during such period to the extent (A) not otherwise deducted in the calculation of
Consolidated Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term funded Indebtedness (other than revolving
Indebtedness); and
(9)
the aggregate amount of expenditures actually made by the Parent Borrower and/or any Restricted Subsidiary in Cash (including any expenditure
for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence
or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including
this Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred
in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were (A)
not expensed and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
in
the case of each of clauses (1)-(9), (I) excluding any such payments, prepayments and expenditures made during such Fiscal Year
that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year,
(II) in the case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction
in the relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds
of other long-term funded Indebtedness (other than revolving Indebtedness) of the Parent Borrower or its Restricted Subsidiaries and
(IV) in each case under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or
assignment; provided that (x) no prepayment under this Section 2.11(b)(i) shall be required unless
the principal amount of Subject Loans required to be prepaid exceeds the greater of $34,000,000 and 10% of Consolidated Adjusted EBITDA
as of the most recently ended Test Period (and, in such case, only such amount in excess of such amount shall be required to be prepaid)
an (y) to the extent the aggregate ECF Deductions for any Excess Cash Flow Period exceeds the Base ECF Prepayment Amount for such period,
the Borrowers may carry forward such excess as additional ECF Deductions to any subsequent Excess Cash Flow Period; provided,
further, that if at the time that any such prepayment would be required, any Borrower (or any Restricted Subsidiary) is also required
to prepay, repay, repurchase or offer to prepay, repay or repurchase any Indebtedness that is secured on a pari passu basis (without
regard to the control of
remedies)
with any Secured Obligation pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be
so prepaid, repaid or repurchased or offered to be so prepaid, repaid or repurchased, “Other Applicable Indebtedness”)
with any portion of the ECF Prepayment Amount, then the Borrowers may apply such portion of the ECF Prepayment Amount on a pro rata basis
(determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the relevant Other Applicable Indebtedness
(or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time) to the prepayment of
the Subject Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Subject Loans
that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly;
it being understood that (1) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed
the portion of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof,
and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Subject Loans in accordance with the terms
hereof and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid, repaid or repurchased,
the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay
the Subject Loans in accordance with the terms hereof.
(ii)
No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation
Proceeds, in each case, in excess of (x) the greater of $25,500,000 and 7.5% of Consolidated Adjusted EBITDA as of the most recently
ended Test Period in any single transaction or series of related transactions and (y) for all Net Proceeds not excluded from the requirements
of this clause (ii) by the preceding clause (x), the greater of $51,000,000 and 15% of Consolidated
Adjusted EBITDA as of the most recently ended Test Period in any Fiscal Year, the applicable Borrowers shall apply an amount equal to
the Required Net Proceeds Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess
of such thresholds (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans
in accordance with clause (vi) below; provided that application of such thresholds shall be at the
option of the Parent Borrower; provided further that (A) the Borrowers
shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds
to the extent (x) the Subject Proceeds are so reinvested in assets used or useful in the business of the Parent Borrower or any of its
subsidiaries (including permitted acquisitions or other Investments, but excluding Cash or Cash Equivalents), in each case within 24
months following receipt thereof (the “Reinvestment Period”) or (y) the Parent Borrower or any of its subsidiaries
has contractually committed to so reinvest or use the Subject Proceeds during such Reinvestment Period and the Subject Proceeds are so
reinvested or used within six months after the expiration of such Reinvestment Period; provided, however, that if the Subject
Proceeds have not been so reinvested or used prior to the expiration of the applicable period, the Parent Borrower shall promptly prepay
the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested or used as set forth above (without regard
to the immediately preceding proviso) (provided that the Parent Borrower may elect to deem certain expenditures that would otherwise
be permissible reinvestments but that occurred prior to the receipt of the applicable Net Proceeds or Net Insurance/Condemnation Proceeds
(as applicable) as having been reinvested in accordance with the provisions of this Section 2.11(b)(ii),
but only to the extent such deemed expenditure shall have been made no earlier than (x) in the case of Net Proceeds, the earliest of
the execution of a definitive agreement with respect to such Prepayment Asset Sale, the provision of notice with respect to such Prepayment
Asset Sale or the consummation of the applicable Disposition and (y) in the case of Net Insurance/Condemnation Proceeds, the occurrence
of the event in respect of which such Net Insurance/Condemnation Proceeds were received) and (B)
if, at the time that any such prepayment would be required hereunder, the Parent
Borrower
or any of its Restricted Subsidiaries is required to prepayment, repay or repurchase (or offer to prepay, repay or repurchase) any Other
Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject
Loans and to the prepayment, repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding
principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness
is issued with original issue discount) at such time); it being understood that (1)
the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds
required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the
Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the
Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be
reduced accordingly and (2) to the extent the holders of the Other Applicable
Indebtedness decline to have such Indebtedness prepaid, repaid or repurchased, the declined amount shall promptly (and in any event within
ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(iii)
In the event that the Parent Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence
of Indebtedness by the Parent Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under
Section 6.01, except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness
incurred to refinance all or a portion of the Amendment No. 8 Term Loans pursuant to Section 6.01(p)
or Replacement Term Loans incurred to refinance Amendment No. 8 Term Loans in accordance with the requirements of Section
9.02(c)), the Parent Borrower shall, substantially simultaneously with (and in any event not later than two Business Days thereafter)
the receipt of such Net Proceeds by the Parent Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such
Net Proceeds to prepay the outstanding principal amount of the relevant Amendment No. 8 Term Loans in accordance with clause (vi)
below.
(iv)
Notwithstanding anything in this Section 2.11(b) to the contrary, (A)
the Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i),
(ii) or (iii) above to the extent that the relevant Excess Cash
Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, the relevant
Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant Indebtedness is incurred by any Foreign Subsidiary
(except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred by any Foreign Subsidiary to refinance
all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or
Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section
9.02(c)), as the case may be, for so long as any Borrower determines in good faith that the repatriation to it of any such amount
would be prohibited or delayed (beyond the time period during which such prepayment is otherwise required to be made pursuant to Section
2.11(b)(i), (ii) or (iii) above) under any Requirement of Law or 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 of management or consultant of such
Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization,
capital maintenance or similar considerations); it being understood and agreed that (i) solely within 365 days following the end
of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt of proceeds from the
respective incurrence of Indebtedness, such Borrower shall take all commercially reasonable actions required by applicable Requirements
of Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash
Flow,
Subject Proceeds or Indebtedness proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent
applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in,
a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days following the end
of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt of Net Proceeds in respect
of any such Indebtedness, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow, Subject Proceeds or
Net Proceeds in respect of Indebtedness, as the case may be, and the repatriated Excess Cash Flow, Subject Proceeds or Net Proceeds in
respect of Indebtedness, as the case may be, will be promptly (and in any event not later than two Business Days after such repatriation)
applied (net of additional Taxes payable or reserved against such Excess Cash Flow, such Subject Proceeds or such Net Proceeds in respect
of Indebtedness, as a result thereof, in each case by any Loan Party, such Loan Party’s subsidiaries, and any Affiliates or indirect
or direct equity owners of the foregoing) to the repayment of the Initial Term Loans and Additional Term Loans pursuant to this Section
2.11(b) to the extent required herein (without regard to this clause (iv), (B)
the Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i)
or (ii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture or
the relevant Subject Proceeds or Net Proceeds in respect of Indebtedness are received by any Joint Venture for so long as any Borrower
determines in good faith that the distribution to such Borrower of such Excess Cash Flow, Subject Proceeds or Net Proceeds in respect
of Indebtedness would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement) governing
such Joint Venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end
of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt of Net Proceeds in respect
of any such Indebtedness, the relevant Joint Venture will promptly distribute the relevant Excess Cash Flow, the relevant Subject Proceeds
or the relevant Net Proceeds in respect of Indebtedness, as the case may be, and the distributed Excess Cash Flow, Subject Proceeds or
Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any event not later than ten Business Days after
such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans
pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))
and (C) if any Borrower determines in good faith that the repatriation to such
Borrower of any amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Sections 2.11(b)(i),
(ii) or (iii) above would result in material and adverse tax consequences,
taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted
Amount”), as determined by the Parent Borrower in good faith, the amount that a Borrower shall be required to mandatorily prepay
pursuant to Sections 2.11(b)(i), (ii) or (iii)
above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation of any
Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness from the relevant Foreign Subsidiary would
no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject
Proceeds, the receipt of Net Proceeds in respect of any such Indebtedness or the end of the applicable Excess Cash Flow Period, as the
case may be, an amount equal to the Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness, as applicable,
not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the Initial
Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above (without
regard to this clause (iv));
(v)
Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative
Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrowers pursuant to
this
Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment
(such declined amounts, the “Declined Proceeds”), which Declined Proceeds may be retained by the Borrowers and used
for any legal purpose permitted (or not prohibited) hereunder, including to increase the Available Amount; provided, further,
that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii)
above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Debt)
incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section
6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section
2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section
9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements
of Section 6.01(z). If any Lender fails to deliver a notice to the Administrative Agent of its election
to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent,
such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory
prepayment of Initial Term Loans and Additional Term Loans.
(vi)
Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A)
each prepayment of Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall
be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans)
(provided that any prepayment constituting (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all
or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental
Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement
Loans incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section
9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements
of Section 6.01(z) shall, in each case be applied solely to each applicable Class of refinanced or
replaced Term Loans), (B) with respect to each Class of Initial Term Loans and
Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii)
or (iii) shall be applied against the remaining scheduled installments of principal due in respect
of the Initial Term Loans and Additional Term Loans as directed by a Borrower (or, in the absence of direction from a Borrower, to the
remaining scheduled amortization payments in respect of the Initial Term Loans and Additional Term Loans in direct order of maturity),
and (C) each such prepayment shall be paid to the Term Lenders in accordance with
their respective Applicable Percentages. The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding
Initial Term Loans and Additional Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or Adjusted Term
SOFR Rate Loans. Any prepayment of Amendment No. 8 Term Loans made on or prior to the date that is six months after the Amendment No.
8 Effective Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction shall be accompanied
by the fee set forth in Section 2.12(f).
(vii)
In the event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the applicable
Borrowers shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline
Loans and/or reduce LC Exposure in an aggregate amount sufficient to reduce such Aggregate Revolving Credit Exposure as of the date of
such payment to an amount not to exceed the Total Revolving Credit Commitment then in effect by taking any of the following actions as
it shall determine at its sole discretion: (A) prepayment of Revolving Loans or
Swingline Loans or (B) with respect to the excess LC Exposure, deposit of Cash
in the LC Collateral Account or “backstopping” or replacement of the relevant Letters of Credit, in each case, in an amount
equal
to 100%
of such excess LC Exposure (minus the amount then on deposit in the LC Collateral Account).
(viii)
At the time of each prepayment required under Section 2.11(b) (i), (ii)
or (iii), a Borrower shall deliver to the Administrative Agent a certificate signed by a Responsible
Officer setting forth in reasonable detail the calculation of the amount of such prepayment. Each such certificate shall specify the
Borrowings being prepaid and the principal amount of each Borrowing (or portion thereof) to be prepaid. Prepayments shall be accompanied
by accrued interest as required by Section 2.13. All prepayments of Borrowings under this Section
2.11(b), except as set forth in the last sentence of clause (vi) above, shall be without premium or penalty.
Section
2.12. Fees.
(a)
Each applicable Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other
than any Defaulting Lender) a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the
Revolving Credit Commitment of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such
Revolving Lender during the period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments
of such Class terminate. Accrued commitment fees shall be payable in arrears no later than 15 calendar days after the last day of each
March, June, September and December for the quarterly period then ended (commencing on September 30, 2017, but in the case of the payment
made on September 30, 2017, for the period from the Closing Date to such date) and on the date on which the Revolving Credit Commitments
of the applicable Class terminate. For purposes of calculating the commitment fees only, no portion of the Revolving Credit Commitments
shall be deemed utilized as a result of outstanding Swingline Loans.
(b)
Each applicable Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender of any Class (other than any Defaulting Lender) a participation fee with respect to its participation
in each Letter of Credit, which shall accrue at the Applicable Rate used to determine the interest rate applicable to Adjusted Term SOFR
Rate Revolving Loans on the daily face amount of such Lender’s LC Exposure attributable to its Revolving Credit Commitment of such
Class in respect of such Letter of Credit (excluding any portion thereof attributable to unreimbursed LC Disbursements), during the period
from and including the Closing Date to the later of the date on which such Revolving Lender’s Revolving Credit Commitment of such
Class terminates and the date on which such Revolving Lender ceases to have any LC Exposure related to its Revolving Credit Commitment
of such Class in respect of such Letter of Credit (including any such Letter of Credit Exposure that may exist following the termination
of such Revolving Credit Commitments) and (ii) to each Issuing Bank, for its
own account, a fronting fee, in respect of each Letter of Credit issued by such Issuing Bank for the period from the date of issuance
of such Letter of Credit to the expiration date of such Letter of Credit (or if terminated on an earlier date, to the termination date
of such Letter of Credit), computed at a rate equal to the rate agreed by such Issuing Bank and the applicable Borrowers (but in any
event not to exceed 0.125% per annum) of the daily face amount of such Letter of Credit, as well as such Issuing Bank’s reasonable
and customary fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued to but excluding the last Business Day of each March, June, September and December shall
be payable in arrears for the quarterly period then ended (or, in the case of the payment made on September 30, 2017, for the period
from the Closing Date to such date) no later than 15 calendar days after the last day of such calendar quarter; provided that
all such fees shall be payable on the date on which the Revolving Credit Commitments of the applicable Class terminate, and any such
fees accruing after the date on which the Revolving Credit Commitments of the applicable Class terminate shall be payable on demand.
Any other fees payable to any Issuing Bank
pursuant to this
paragraph shall be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation) therefor.
(c)
[Reserved].
(d)
Each Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately
agreed upon by the Borrowers and the Administrative Agent in writing.
(e)
All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative
Agent (or to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.
Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment
date.
(f)
In the event that, on or prior to the date that is six months after the Amendment No. 8 Effective Date, a Borrower (x) prepays,
repays, refinances, substitutes or replaces any Amendment No. 8 Term Loans in connection with a Repricing Transaction (including, for
the avoidance of doubt, any prepayment made pursuant to Section 2.11(b)(iii) that constitutes a Repricing
Transaction) or (y) effects any amendment, modification or waiver of, or consent under, this Agreement resulting in a Repricing Transaction,
the Borrower of the Amendment No. 8 Term Loans shall pay to the Administrative Agent, for the ratable account of each of the applicable
Amendment No. 8 Term Lenders, (I) in the case of clause (x), a premium of 1.00% of the aggregate principal amount of the Amendment
No. 8 Term Loans so prepaid, repaid, refinanced, substituted or replaced and (II) in the case of clause (y), a fee equal to 1.00%
of the aggregate principal amount of the Amendment No. 8 Term Loans that are the subject of such Repricing Transaction outstanding immediately
prior to such amendment. If, on or prior to the date that is six months after the Amendment No. 8 Effective Date, all or any portion
of the Amendment No. 8 Term Loans held by any Term Lender are prepaid, repaid, refinanced, substituted or replaced pursuant to Section
2.19(b)(iv) as a result of, or in connection with, such Term Lender not agreeing or otherwise consenting to any waiver, consent, modification
or amendment referred to in clause (y) above (or otherwise in connection with a Repricing Transaction), such prepayment, repayment,
refinancing, substitution or replacement will be made at 101% of the principal amount so prepaid, repaid, refinanced, substituted or
replaced. All such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
(g)
Unless otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable
for the actual days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the
amount of any fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section
2.13. Interest.
(a)
The Term Loans and Revolving Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b)
[Reserved].
(c)
The Term Loans and Revolving Loans comprising each Adjusted Term SOFR Rate Borrowing shall bear interest at the Adjusted Term
SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(d)
Notwithstanding the foregoing, at the request of the Administrative Agent, during the existence and continuance of any Event
of Default under Section 7.01(a), if any principal of or interest on any Amendment No. 8 Term Loan or Revolving
Loan, any LC Disbursement or any fee payable by a Borrower hereunder is not, in each case, paid or reimbursed when due, whether at stated
maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest, to the fullest extent permitted by applicable
Requirements of Law, after as well as before judgment, at a rate per annum equal to (i)
in the case of overdue principal or interest of any Amendment No. 8 Term Loan, Revolving Loan or unreimbursed LC Disbursement, 2.00%
plus the rate otherwise applicable to such Amendment No. 8 Term Loan, Revolving Loan or LC Disbursement as provided in the preceding
paragraphs of this Section or Section 2.05(h) or (ii)
in the case of any other amount, 2.00% plus the rate applicable to Revolving Loans that are ABR Loans as provided in paragraph
(a) of this Section; provided that no amount shall be payable pursuant to this Section
2.13(d) to any Defaulting Lender so long as such Lender is a Defaulting Lender; provided further that no amounts shall accrue
pursuant to this Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any LC Disbursement
or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.
(e)
Accrued interest on each Amendment No. 8 Term Loan, Revolving Loan or Swingline Loan shall be payable in arrears on each Interest
Payment Date for such Amendment No. 8 Term Loan, Revolving Loan or Swingline Loan and on the Maturity Date applicable to such Loan or
upon the termination of the Revolving Credit Commitments, as applicable; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii)
in the event of any repayment or prepayment of any Amendment No. 8 Term Loan or Revolving Loan (other than a prepayment of an ABR Revolving
Loan prior to the termination of the relevant revolving Commitments), 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 Adjusted Term SOFR Rate Loan, as applicable, prior to the end of the current Interest Period therefor, accrued
interest on such Amendment No. 8 Term Loan or Revolving Loan shall be payable on the effective date of such conversion. Accrued interest
for any Class of Additional Revolving Loans or Additional Term Loans shall be payable as set forth in the applicable Refinancing Amendment,
Incremental Facility Amendment or Extension Amendment.
(f)
All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based
on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate and Adjusted
Term SOFR Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Interest
shall accrue on each Loan from 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; provided further that, in the case of any ABR Loan, interest shall accrue through and including the last
day of the month preceding the applicable Interest Payment Date.
Section
2.14. Alternate
Rate of Interest. If at least two Business Days prior to the commencement of any Interest Period for an Adjusted Term SOFR 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 the Adjusted Term SOFR Rate for such Interest Period; or
(b)
the Administrative Agent is advised by the Required Lenders that the Adjusted Term SOFR Rate 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 promptly give notice thereof to the Parent Borrower and the Lenders by telephone or facsimile as promptly as practicable
thereafter and, until the Administrative Agent notifies the Parent Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, which the Administrative Agent agrees promptly to do, (i)
any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, an Adjusted Term
SOFR Rate Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing on the last day of the Interest Period
applicable thereto and (ii) if any Borrowing Request requests an Adjusted Term
SOFR Rate Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section
2.15. Increased
Costs.
(a)
If any Change in Law:
(i)
imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender or Issuing Bank; or
(ii)
imposes on any Lender or Issuing Bank any other condition affecting this Agreement or Adjusted Term SOFR Rate Loans made by any
Lender or any Letter of Credit or participation therein;
and the result
of any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any Adjusted Term SOFR Rate Loan (or
of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing
or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder
(whether of principal, interest or otherwise) in respect of any Adjusted Term SOFR Rate Loan or Letter of Credit in an amount deemed
by such Lender or Issuing Bank to be material, then, within 30 days after the Parent Borrower’s receipt of the certificate contemplated
by paragraph (c) of this Section, the applicable Borrowers
will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank,
as applicable, for such additional costs incurred or reduction suffered (except that this provision shall not apply to any Taxes, which
shall be dealt with exclusively pursuant to Section
2.17); provided that the Borrowers shall not be liable for such compensation if (x) the relevant Change in Law occurs on a
date prior to the date such Lender becomes a party hereto, (y) such Lender invokes Section
2.20 or (z) in the case of requests for reimbursement under clause (ii)
above resulting from a market disruption, (A) the relevant circumstances do
not generally affect the banking market or (B) the applicable request has not
been made by Lenders constituting Required Lenders.
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have
the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s
or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such
Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other
than due to Taxes, which shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration
such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company
with respect to capital adequacy), then within 30 days of receipt by the Parent Borrower of the certificate contemplated by paragraph
(c) of this Section the applicable Borrowers will pay to such Lender or such Issuing Bank, as applicable, such additional
amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company
for any such reduction suffered.
(c)
Any Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver
a certificate to the Parent Borrower that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or
its holding company, as applicable, as specified in paragraph (a) or (b) of this Section,
(ii) sets forth in reasonable detail the manner in which such amount or amounts were determined and (iii) certifies that such Lender
or Issuing Bank is generally charging such amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest
error.
(d)
Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute
a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not
be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than
180 days prior to the date that such Lender or Issuing Bank notifies the Parent Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or Issuing Bank’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. [Reserved].
Section
2.17. Taxes.
(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 for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires
the deduction or withholding of any Tax from any such payment, then (i) if such
Tax is an Indemnified Tax, the amount payable by the applicable Loan Party shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, each Lender and
each Issuing Bank (as applicable) receives an amount equal to the sum it would have received had no such deductions been made, (ii)
such Loan Party shall make such deductions and (iii) such Loan Party shall
timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.
(b)
In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(c)
Each Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the
certificate described in the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative
Agent, such Lender or Issuing Bank, as applicable, on or with respect to any payment by or any payment on account of any obligation of
any Loan Party hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority; provided, however that the Loan Parties shall not be obligated to indemnify
the Administrative Agent or such Lender or such Issuing Bank with respect to any penalties resulting from any action or inaction of the
Administrative Agent or such Lender or Issuing Bank; and provided further, that if such Loan Party reasonably believes that such
Taxes were not correctly or legally asserted, the Administrative Agent or such Lender or Issuing Bank, as applicable, will use reasonable
efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which shall be repaid to such Loan Party in accordance with
Section 2.17(g)) so long as such efforts would not, in the sole determination of the Administrative Agent
or such Lender or Issuing Bank, result in any additional out-of-pocket costs or expenses not reimbursed by such Loan Party or be otherwise
materially disadvantageous to the Administrative Agent or such Lender or
Issuing Bank, as
applicable. In connection with any request for reimbursement under this Section 2.17(c), the relevant Lender,
Issuing Bank or the Administrative Agent, as applicable, shall deliver a certificate to the Parent Borrower (i)
setting forth, in reasonable detail, the basis and calculation of the amount of the relevant payment or liability and (ii)
certifying that it is generally charging the relevant amounts to similarly situated borrowers, which certificate shall be conclusive
absent manifest error. Notwithstanding anything to the contrary contained in this Section 2.17(c), no Borrower
shall be required to indemnify the Administrative Agent or any Lender pursuant to this Section 2.17(c) for
any amount to the extent the Administrative Agent or such Lender fails to notify the Parent Borrower of the relevant possible indemnification
claim within 180 days after the Administrative Agent or such Lender receives written notice from the applicable taxing authority of the
specific tax assessment giving rise to such indemnification claim.
(d)
Each Lender and each Issuing Bank shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for
(i) any Indemnified Taxes on or with respect to any payment under any Loan Document
that is attributable to such Lender or Issuing Bank (but only to the extent that no Loan Party has already indemnified the Administrative
Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii)
any Taxes attributable to such Lender’s or Issuing Bank’s failure to comply with the provisions of Section
9.05(c) relating to the maintenance of a Participant Register and (iii)
any Excluded Taxes attributable to such Lender or Issuing Bank, in each case, that are payable or paid by the Administrative Agent in
connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to any Lender or Issuing Bank by the Administrative Agent shall be conclusive absent manifest error. Each Lender and Issuing
Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Issuing
Bank under any Loan Document or otherwise payable by the Administrative Agent to any Lender or Issuing Bank under any Loan Document or
otherwise payable by the Administrative Agent to any Lender or Issuing Bank from any other source against any amount due to the Administrative
Agent under this clause (d).
(e)
As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section, 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 that is reasonably satisfactory
to the Administrative Agent.
(f)
Status of Lenders.
(i)
Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan
Document shall deliver to the Parent Borrower and the Administrative Agent, at the time or times reasonably requested by the Parent Borrower
or the Administrative Agent, such properly completed and executed documentation as the Parent Borrower or the Administrative Agent may
reasonably request to permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender,
if reasonably requested by the Parent Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable
Requirements of Law or reasonably requested by the Parent Borrower or the Administrative Agent as will enable the Parent Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
Each Lender hereby authorizes the Administrative Agent to deliver to the Borrowers and to any successor Administrative Agent any documentation
provided to the Administrative Agent pursuant to this Section 2.17(f).
(ii)
Without limiting the generality of the foregoing,
(A)
each Lender that is not a Foreign Lender shall deliver to the Parent Borrower and the Administrative Agent on or prior to the
date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the
Parent Borrower or the Administrative Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from
U.S. federal backup withholding tax;
(B)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Parent Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Parent Borrower or the Administrative
Agent), whichever of the following is applicable:
(1)
in the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect
to payments of interest under any Loan Document, executed original copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from,
or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect
to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of,
U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)
executed original copies of IRS Form W-8ECI;
(3)
in the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Parent Borrower within the meaning
of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code
(a “U.S. Tax Compliance Certificate”) and (y) executed original copies of IRS Form W-8BEN or W-8BEN-E; or
(4)
to the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS
Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit
L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign
Lender is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender
may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such partner;
(C)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Parent Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from time to time
thereafter
upon the reasonable request of the Parent Borrower or the Administrative Agent), executed original copies of any other form prescribed
by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit the Parent Borrower or
the Administrative Agent to determine the withholding or deduction required to be made; and
(D)
if a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such
Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to the Parent Borrower and the Administrative Agent at the time or times prescribed
by law and at such time or times reasonably requested by the Parent Borrower or the Administrative Agent such documentation as is prescribed
by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Parent Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative
Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D),
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees
that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such documentation
or promptly notify the Parent Borrower and the Administrative Agent in writing of its legal inability to do so.
(g)
If the Administrative Agent or any Lender or Issuing Bank determines, in its sole discretion exercised in good faith, that it
has received a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan
Party has paid additional amounts pursuant to this Section 2.17 (including by the payment of additional amounts
pursuant to this Section 2.17), it shall pay over such refund to such Loan Party (but only to the extent
of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.17 with respect
to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or Issuing
Bank (including any Taxes imposed with respect to such refund), and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent, such Lender
or Issuing Bank, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent, such Lender or Issuing Bank in the event the Administrative Agent,
such Lender or Issuing Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary
in this paragraph (g), in no event will the Administrative Agent, any Lender or Issuing Bank be required to pay
any amount to any Loan Party pursuant to this paragraph (g) to the extent that the payment thereof would place the
Administrative Agent, Lender or Issuing Bank in a less favorable net after-Tax position than the position that the Administrative Agent
or such Lender or Issuing Bank would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise
imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section shall not
be construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its Tax returns (or any other information
relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
(h)
The Administrative Agent shall deliver to the Parent Borrower, on or before the date on which it becomes the Administrative Agent
hereunder, either (i) a duly executed original IRS Form W-9 (or any applicable
successor form) certifying that the Administrative Agent is not subject to backup withholding, or (ii)
(A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative
Agent is not subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the
Administrative Agent under any of the Loan Documents and (B) a duly executed original
IRS Form W-8IMY (or applicable successor form) certifying that it is a U.S. branch that has agreed to be treated as a U.S. person for
United States federal withholding Tax purposes with respect to payments received by it from the Borrowers for the account of others under
the Loan Documents. The Administrative Agent shall promptly notify the Parent Borrower at any time it determines that it is no longer
in a position to provide the certification described in the preceding sentence. The Administrative Agent shall also, at the time or times
prescribed by law and at such time or times reasonably requested by the Parent Borrower, provide the Parent Borrower such documentation
as prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Parent Borrower as may be necessary for the Borrowers to comply with their FATCA obligations, to determine whether the
Administrative Agent has or has not complied with its FATCA obligations, and to determine the amount, if any, to deduct and withhold
from a payment to the Administrative Agent.
(i)
Survival. 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, any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section
2.18. Payments
Generally; Allocation of Proceeds; Sharing of Payments.
(a)
Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements or of amounts payable under Section 2.15 or 2.17,
or otherwise) prior to the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.)
on the date when due, in immediately available funds, without set-off (except as otherwise provided in Section
2.17) or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made
to the Administrative Agent to the applicable account designated to the Parent Borrower by the Administrative Agent, except payments
to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15 or 2.17 and 9.03 shall be made directly
to the Persons entitled thereto. 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. Each Lender agrees that in computing such Lender’s portion
of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round such Lender’s percentage of such
Borrowing to the next higher or lower whole dollar amount. Except as set forth in any amendment entered into pursuant to Section 9.02(b)(ii)(E)
with respect to the making of Revolving Loans or Letters of Credit denominated in a currency other than Dollars, all payments (including
accrued interest) hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be
deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps
to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative
Agent to make such payment.
(b)
Subject in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement,
all proceeds of Collateral received by the Administrative
Agent at any time
when an Event of Default exists, shall, upon election by the Administrative Agent or at the direction of the Required Lenders, be applied,
first, to the payment of all costs and expenses then due incurred by the Administrative Agent in connection with any collection,
sale or realization on Collateral or otherwise in connection with this Agreement, any other Loan Document or any of the Secured Obligations,
including all court costs and the fees and expenses of agents and legal counsel, the repayment of all advances made by the Administrative
Agent hereunder or under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with
the exercise of any right or remedy hereunder or under any other Loan Document, second, on a pro rata basis, to pay any fees,
indemnities or expense reimbursements then due to the Administrative Agent (other than those covered in clause first above) or to the
Swingline Lender or any Issuing Bank from the Borrowers constituting Secured Obligations, third, on a pro rata basis in accordance
with the amounts of the Secured Obligations (other than contingent indemnification obligations for which no claim has yet been made)
owed to the Secured Parties on the date of any such distribution, to the payment in full of the Secured Obligations (including, with
respect to LC Exposure, an amount to be paid to the Administrative Agent equal to 100% of the LC Exposure (minus the amount then
on deposit in the LC Collateral Account) on such date, to be held in the LC Collateral Account as Cash collateral for such Obligations);
provided that if any Letter of Credit expires undrawn, then any Cash collateral held to secure the related LC Exposure shall be
applied in accordance with this Section 2.18(b), beginning with clause first above, fourth, as provided
for under the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, and fifth, to the Borrowers
or as the Parent Borrower shall direct.
(c)
If any Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect
of any principal of or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans held by it
resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and participations
in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender with Loans of such
Class and participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for
Cash at face value) participations in the Loans of such Class and sub-participations in LC Disbursements or Swingline Loans 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 and participations in LC Disbursements or Swingline Loans; 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 apply to (x) any payment made by a Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a participation in
any of its Loans to any permitted assignee or participant, including any payment made or deemed made in connection with Sections 2.22,
2.23, 9.02(c) and/or Section 9.05. Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against the applicable Borrowers rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct creditor of the applicable Borrowers in the amount of such
participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section 2.18(c) and will, in each case, notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.18(c)
shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original
owner of the Obligations purchased.
(d)
Unless the Administrative Agent has received notice from a Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of any Lender or any Issuing Bank hereunder that a Borrower will not make such payment, the Administrative Agent
may assume that a Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute
to the applicable Lender or Issuing Bank the amount due. In such event, if a Borrower has not in fact made such payment, then each Lender
or the applicable Issuing Bank severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the 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 fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section
2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.
Section
2.19. Mitigation
Obligations; Replacement of Lenders.
(a)
If any Lender requests compensation under Section 2.15 or such Lender determines it can no longer
make or maintain Adjusted Term SOFR Rate Loans pursuant to Section 2.20, or any Loan Party is required to
pay any additional amount to or indemnify any Lender or any Governmental Authority for the account of any Lender pursuant to Section
2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder
or its participation in any Letter of Credit affected by such event, or to assign 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 (i)
would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii)
would not subject such Lender to any material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to
such Lender in any material respect. Each applicable Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred
by any Lender in connection with any such designation or assignment.
(b)
If (i) any Lender requests compensation under Section
2.15 or such Lender determines it can no longer make or maintain Adjusted Term SOFR Rate Loans pursuant to Section
2.20, (ii) any Loan Party is required to pay any additional amount to or
indemnify any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17,
(iii) any Lender is a Defaulting Lender or (iv)
in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each Revolving
Lender” or “each Lender directly affected thereby” (or any other Class or group of Lenders other than the Required
Lenders) with respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding loans or commitments
of such Class or lesser group representing more than 50% of the sum of the total loans and unused commitments of such Class or lesser
group at such time) has been obtained, as applicable, any Lender is a non-consenting Lender (each such Lender, a “Non-Consenting
Lender”), then any applicable Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, (x) terminate the applicable Commitments and/or Additional Commitments of such Lender, and repay all Obligations of such Borrower
owing to such Lender relating to the applicable Loans and participations held by such Lender as of such termination date under one or
more Credit Facilities or Additional Credit Facilities as such Borrower may elect or (y) replace such Lender by requiring 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
9.05), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations
(which Eligible Assignee may be another Lender, if any Lender accepts such assignment); provided that (A)
such Lender shall have received payment of an amount equal to the outstanding principal amount of its Loans and, if applicable, participations
in LC Disbursements and Swingline Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional
Commitments, (B) in the case of any assignment resulting from a claim for compensation
under Section 2.15 or payments required to be made pursuant to Section 2.17,
such assignment will result in a reduction in such compensation or payments and (C)
such assignment does not conflict with applicable law. No Lender (other than a Defaulting Lender) shall be required to make any such
assignment and delegation, and a Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional Commitments,
if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling a Borrower to require such assignment
and delegation cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it
shall execute and deliver to the Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver
to the Administrative Agent any Promissory Note (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes)
subject to such Assignment and Assumption (provided that the failure of any Lender replaced pursuant to this Section
2.19 to execute an Assignment and Assumption or deliver any such Promissory Note shall not render such sale and purchase (and the
corresponding assignment) invalid), such assignment shall be recorded in the Register and any such Promissory Note shall be deemed cancelled.
Each Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s
attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the
Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such Assignment
and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause
(b). To the extent that any Lender is replaced pursuant to Section 2.19(b)(iv) in connection with a Repricing
Transaction requiring payment of a fee pursuant to Section 2.12(f), the applicable Borrowers shall pay to
each Lender being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(f).
Section
2.20. Illegality.
If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after
the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest
is determined by reference to the Term SOFR Reference Rate, or to determine or charge interest rates based upon the Term SOFR Reference
Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Parent Borrower through the Administrative
Agent, (i) any obligation of such Lender to make or continue Adjusted Term SOFR
Rate Loans in Dollars or to convert ABR Loans to Adjusted Term SOFR Rate Loans shall be suspended and (ii)
if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference
to the Term SOFR Reference Rate component of the Alternate Base Rate, 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 Reference Rate component
of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Parent Borrower that the circumstances
giving rise to such determination no longer exist (which notice such Lender agrees to give promptly). Upon receipt of such notice, (x)
the applicable Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all of such
Lender’s Adjusted Term SOFR Rate Loans 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 Reference Rate 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 Adjusted Term
SOFR Rate Loans to such day, or
immediately, if
such Lender may not lawfully continue to maintain such Adjusted Term SOFR 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 Reference Rate
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. Upon any such prepayment or conversion, the applicable Borrowers
shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if
such designation will avoid the need for such notice and will not, in the determination of such Lender, otherwise be materially disadvantageous
to such Lender.
Section
2.21. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)
Fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section
2.12(a) and, subject to clause (d)(iv) below, on the participation of such Defaulting Lender in
Letters of Credit pursuant to Section 2.12(b) and pursuant to any other provisions of this Agreement or other
Loan Document.
(b)
The Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each
affected Lender, the Required Lenders, Required Revolving Lenders or such other number of Lenders as may be required hereby or under
any other Loan Document have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant
to Section 9.02); provided that any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders
shall require the consent of such Defaulting Lender.
(c)
Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section
2.15, Section 2.17, Section 2.18, Article 7, Section
9.05 or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section
9.09), shall be applied at such time or times as may be determined by the Administrative Agent and, where relevant, the Borrowers
as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second,
to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any applicable Issuing Bank and/or Swingline
Lender hereunder; third, if so reasonably determined by the Administrative Agent or reasonably requested by the applicable Issuing
Bank, to be held as Cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Letter
of Credit; fourth, so long as no Default or Event of Default exists, as the Parent Borrower may request, to the funding of any
Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if
so determined by the Administrative Agent or the Parent Borrower, to be held in a deposit account and released in order to satisfy obligations
of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the non-Defaulting
Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any non-Defaulting
Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach
of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment
of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loan
or LC Exposure
in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loan or LC Exposure was made or created,
as applicable, 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 LC Exposure owed to, all non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender. Any payments, prepayments or other amounts
paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by any Defaulting Lender or to post Cash collateral
pursuant to this Section 2.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and each
Lender irrevocably consents hereto.
(d)
If any Swingline Loans or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
(i)
all or any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance
with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures
does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments;
(ii)
if the reallocation described in clause (i) above cannot, or can only partially, be effected, the
applicable Borrowers shall, without prejudice to any other right or remedy available to it hereunder or under applicable Requirements
of Law, within two Business Days following notice by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s
LC Exposure and any obligations of such Defaulting Lender to fund participations in any Swingline Loan (after giving effect to any partial
reallocation pursuant to paragraph (i) above and any Cash collateral provided by such Defaulting Lender or
pursuant to Section 2.21(c) above) or make other arrangements reasonably satisfactory to the Administrative
Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC Exposure and/or Swingline Loans and obligations
to fund participations. Cash collateral (or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall
be released promptly following (A) the elimination of the applicable LC Exposure
or other obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or,
as appropriate, its assignee following compliance with Section 2.19)) or (B)
the Administrative Agent’s good faith determination that there exists excess Cash collateral (including as a result of any subsequent
reallocation of Swingline Loans and LC Exposure among non-Defaulting Lenders described in clause (i) above);
(iii)
(A)(A) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section
2.21(d), then the fees payable to the Revolving Lenders pursuant to Section 2.12(a) and (b),
as the case may be, shall be adjusted to give effect to such reallocation and (B)
if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank, any Lender or any Borrower hereunder, no letter of
credit fees shall be payable under Section 2.12(b) with respect to such Defaulting Lender’s
LC Exposure; and
(iv)
if any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section
2.21(d), then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all
letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s
LC Exposure shall be payable to the applicable Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or
reallocated.
(e)
So long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan,
and no Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably
satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral
provided pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrowers in accordance with
Section 2.21(d), and participating interests in any such or newly issued, extended or created Letter of Credit
or newly made Swingline Loan shall be allocated among non-Defaulting Revolving Lenders in a manner consistent with Section
2.21(d)(i) (it being understood that Defaulting Lenders shall not participate therein).
(f)
In the event that the Administrative Agent and the Parent Borrower agree that any Defaulting Lender has adequately remedied all
matters that caused such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure of the Revolving
Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such Revolving
Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations
in Revolving Loans as the Administrative Agent shall determine as are necessary in order for such Revolving Lender to hold such Revolving
Loans or participations in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately
remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to
fees accrued or payments made by or on behalf of the applicable Borrowers while such Lender was a Defaulting Lender and (y) 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 such Lender’s having been a Defaulting Lender.
Section
2.22. Incremental
Credit Extensions.
(a)
The Borrowers may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new
tranches of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting
new term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility”
and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more
new tranches of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment
(any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility,
“Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder,
“Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”)
in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i)
no Incremental Commitment may be less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably
agree),
(ii)
except as separately agreed from time to time between a Borrower and any Lender, no Lender shall be obligated to provide any Incremental
Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being
agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii)
no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval
of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental
Loan,
(iv)
any such Incremental Revolving Facility shall either (A) be subject to
the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility)
(it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrowers may increase the pricing,
interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving
Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without
any requirement to pay such amounts to any existing Revolving Lenders) or (B)
mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Amendment No. 6 Incremental
and Replacement and Incremental Revolving Credit
Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent,
amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined
by the applicable Borrowers) shall be substantially consistent with the Amendment No. 6 Replacement and Incremental Revolving Loans or
shall be reasonably satisfactory to the Administrative Agent; provided, that if any financial maintenance covenant is added to
any such Incremental Revolving Facility and such financial maintenance covenant is more favorable to the lenders under such Incremental
Revolving Facility than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after the applicable
Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable financial maintenance
covenant (together with, at the election of the Parent Borrower, any applicable “equity cure” provisions with respect to
any such financial maintenance covenant) (it being understood that if any financial maintenance covenant or other more favorable provision
is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender
to the extent that such financial maintenance covenant or other provision is (1)
also added for the benefit of any then-existing Revolving Facility or (2) only
applicable after the applicable Latest Revolving Loan Maturity Date),
(v)
the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the applicable Borrowers
and the lender or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated floating rate
Dollar denominated term “B” loan Incremental Term Facility secured on a pari passu basis with the Amendment No. 8 Term Loans
that (x) is originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental Cap”
(but not any reclassification pursuant to clause (3) of the proviso therein) and (y) has a final stated maturity date that is
prior to the date that is one year after the Amendment No. 8 Term Loan Maturity Date, the Effective Yield applicable thereto may not
be more than 0.50% higher than the Effective Yield applicable to the Amendment No. 8 Term Loans unless the Applicable Rate (and/or, as
provided in the proviso below, the Alternate Base Rate floor or Adjusted Term SOFR Rate floor) with respect to the Amendment No. 8 Term
Loans is adjusted such that the Effective Yield on the Amendment No. 8 Term Loans is not more than 0.50% per annum less than the Effective
Yield with respect to such Incremental Facility (this proviso, the “MFN Provision”); provided, further,
that any increase in Effective Yield applicable to any Amendment No. 8 Term Loan due to the application or imposition of an Alternate
Base Rate floor or Adjusted Term SOFR Rate floor on any Incremental Term Loan may, at the election of the Parent Borrower, be effected
through an increase in the Alternate Base Rate floor or Adjusted Term SOFR Rate floor applicable to such Amendment No. 8 Term Loans or
an increase in the interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision shall not
apply to (i) Incremental Term Facilities having an aggregate principal amount not exceeding the greater of $170,000,000 and 50% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period (as selected by the Parent Borrower), (ii) any Incremental
Term Facility incurred more than twelve months after the Amendment No. 8 Effective Date and (iii) customary bridge loans with a maturity
date of not longer than one year that are convertible or
exchangeable
into, or are intended to be refinanced with, any Indebtedness other than term loans that are pari passu with the Amendment No. 8 Term
Loans in right or payment and with respect to security,
(vi)
the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Amendment No. 8 Term Loan Maturity
Date at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans
with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are
exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi)
and (ii) the Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Parent Borrower),
(vii)
the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average
Life to Maturity of the Amendment No. 8 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge
loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which
are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii)
or (ii) the Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Parent Borrower),
(viii)
subject to clauses (vi) and (vii) above, any Incremental Term Facility
may otherwise have an amortization schedule as determined by the applicable Borrowers and the lenders providing such Incremental Term
Facility,
(ix)
subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental
Facility shall be determined by the applicable Borrowers and the arrangers and/or lenders providing such Incremental Facility,
(x)
(A)(A) each Incremental Facility shall rank pari passu with the Amendment No. 8 Term Loans (in the case of any Incremental
Term Facility) and pari passu with the Amendment No. 6 Replacement and Incremental Revolving Loans (in the case of Incremental
Revolving Loans), in each case in right of payment and security and (B) no Incremental
Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi)
any Incremental Term Facility may provide for the ability to participate (A)
on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section
2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis,
other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment
of Term Loans required pursuant to Section 2.11(b),
(xii)
(xii) to the extent required by the lenders providing such Incremental Facility, no Event of Default under Section
7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness
of such Incremental Facility (except in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption
of Indebtedness, where no such Event of Default shall exist at the time as elected by the Parent Borrower pursuant to Section
1.04(e)),
(xiii) except
as otherwise required or permitted in clauses (v) through (xi) above,
all other terms of any Incremental Term Facility shall be as agreed between the applicable Borrowers and the lenders providing such Incremental
Term Facility,
(xiv)
the proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes
of the Parent Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted
Debt Payments and any other purpose not prohibited by the terms of the Loan Documents), and
(xv)
on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term
Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13,
such Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional
Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on
the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding
borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective
Class.
(b)
Incremental Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee
being called an “Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental
Revolving Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned
or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section
9.05(b) for an assignment of Loans to such Additional Lender; provided; further, that any Additional Lender that is
an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the
same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c)
Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative
Agent and the Parent 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 Commitment. On the effective date of such Incremental Commitment,
each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d)
As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i)
upon its request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements,
supplements and/or amendments as it shall reasonably require, (ii) the Administrative
Agent shall have received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender
by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require
from such Additional Lender, (iii) the Administrative Agent and applicable
Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and
(iv) upon its request, the Administrative Agent shall have received a certificate
of the Parent Borrower signed by a Responsible Officer thereof:
(A)
certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrowers approving or consenting
to such Incremental Facility or Incremental Loans, and
(B)
to the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i)
if such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments
(rather than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will automatically
and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental
Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s
participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment
and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A)
participations hereunder in Letters of Credit and (B) participations hereunder
in Swingline Loans shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving
effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing
Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the
Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders
providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that
all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis
of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment
pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro
rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions
effected pursuant to this clause (i); and
(ii)
if such Incremental Revolving Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments,
(1) the borrowing and repayment (except for (A) payments of interest and fees
at different rates on the existing Revolving Facilities and such Incremental Revolving Facility, (B)
repayments required upon the Maturity Date of the then-existing Revolving Facility and such Incremental Revolving Facility and (C)
repayments made in connection with any permanent repayment and termination of commitments (subject to clause (3) below)) of Incremental
Revolving Loans after the effective date of such Incremental Revolving Facility Commitments shall be made on a pro rata basis
with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Facility, (2) all swingline loans and/or
letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall be participated on a pro rata
basis by all Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental
Revolving Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding
Incremental Revolving Facility, except that the applicable Borrowers shall be permitted to permanently repay and terminate commitments
under such Incremental Revolving Facility on a greater than pro rata basis as compared with any other revolving facility with
a later Maturity Date than such revolving facility.
(f)
Effective on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline
Loans, as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Parent Borrower
and the relevant Issuing Bank and/or the Swingline Lender, as applicable.
(g)
The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any
amendment to any other Loan Documents with any Loan
Parties as may
be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended pursuant to
this Section 2.22 (including, for instance, to increase the amortization of any existing tranche of Term
Loans (or to provide for any tranche of Term Loans to have (or to again have) amortization in order to have such existing tranche of
Term Loans be “fungible” with any Incremental Term Facility that is to be added to such Term Loans) and such technical amendments
as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Parent Borrower in connection with the
establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.22.
(h)
Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan
Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the
lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or
“certain funds” conditionality (including the making and accuracy of Specified Representations as conformed for such acquisition
or other Investment).
(i)
This Section 2.22 shall supersede any provision in Section 2.18 or 9.02
to the contrary.
Section
2.23. Extensions
of Loans and Revolving Credit Commitments.
(a)
Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”)
made from time to time by the applicable Borrowers to all Lenders holding Loans of any Class or Commitments of any Class, in each case
on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on
the same terms to each such Lender, the applicable Borrowers are hereby permitted from time to time to consummate transactions with any
individual Lender who accepts the terms contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of
such Lender’s Loans and/or Commitments of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments
pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans
and/or Commitments (and related outstandings) and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an
“Extension”); it being understood that any Extended Term Loans shall constitute a separate Class of Loans from the
Class of Loans from which they were converted and any Extended Revolving Credit Commitments shall constitute a separate Class of Revolving
Credit Commitments from the Class of Revolving Credit Commitments from which they were converted, so long as the following terms are
satisfied:
(i)
except as to (x) interest rates, fees and final maturity (which shall, subject to the succeeding clause (iii)(y),
be determined by the applicable Borrowers and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving
Credit Commitments or Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit
Commitments or Extended Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents
on or prior to the effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent
pursuant to the applicable Extension Amendment and (z) any terms or other provisions applicable only to periods after the Latest Revolving
Loan Maturity Date (in each case, as of the date of such Extension), the commitment of any Revolving Lender that agrees to an Extension
(an “Extended Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving Loans”),
and the related outstandings, shall be a revolving commitment (or related outstandings, as the case may be) with substantially consistent
terms (or terms not less favorable to existing Revolving Lenders) as the original Revolving Credit Commitments (and related
outstandings)
provided hereunder; provided that to the extent any non-extended portion of the Revolving Facility or any Additional Revolving
Facility then exists, (1) the borrowing and repayment (except for (A) payments
of interest and fees at different rates on such revolving facilities (and related outstandings), (B) repayments
required upon the Maturity Date of such revolving facilities and (C) repayments
made in connection with any permanent repayment and termination of commitments (subject to clause (3) below)) of Extended Revolving
Loans after the effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion
of the Revolving Facility or the relevant Additional Revolving Facility, as applicable, (2) all swingline loans and/or letters of credit
made or issued, as applicable, under any Extended Revolving Credit Commitment shall be participated on a pro rata basis by all
Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination of commitments under, any such Extended Revolving
Credit Commitment after the effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with
such portion of the Revolving Facility and/or any Additional Revolving Facility, except that the applicable Borrower shall be permitted
to permanently repay and terminate commitments of any such revolving facility on a greater than pro rata basis (I) as compared
to any other Revolving Facilities with a later Maturity Date than such Revolving Facility and (II) to the extent refinanced or replaced
with a Replacement Revolving Facility or Replacement Debt;
(ii)
except as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation
in prepayments (which shall, subject to immediately succeeding clauses (iii)(x), (iv)
and (v), be determined by the applicable Borrowers and set forth in the relevant Extension Offer),
(y) terms applicable to such Extended Term Loans that are more favorable to the lenders or the agent of such Extended Term Loans than
those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or prior to the effectiveness of such
Extension for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant to the applicable Extension Amendment
and (z) any covenants or other provisions applicable only to periods after the Latest Term Loan Maturity Date (in each case, as of the
date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any such extended Term Loans, the “Extended
Term Loans”) shall have substantially consistent terms as the tranche of Term Loans subject to the relevant Extension Offer;
(iii)
(x) the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity
Date at the time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity
date earlier than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv)
the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life
to Maturity of the Term Loans or any other Extended Term Loans extended thereby;
(v)
subject to clauses (iii) and (iv) above, any Extended Term Loans
may otherwise have an amortization schedule as determined by the applicable Borrowers and the Lenders providing such Extended Term Loans;
(vi)
any Extended Term Loans may provide for the ability to participate (A)
on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section
2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis
other than in the case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory prepayment
of Term Loans required pursuant to Section 2.11(b);
(vii)
if the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted
the relevant Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be
extended by the applicable Borrowers pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders
shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record)
held by Lenders that have accepted such Extension Offer;
(viii)
unless the Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix)
any applicable Minimum Extension Condition shall be satisfied or waived by the Parent Borrower; and
(x)
all documentation in respect of such Extension shall be consistent with the foregoing.
(b)
With respect to any Extension consummated pursuant to this Section 2.23, (i) no such Extension shall
constitute a voluntary or mandatory prepayment for purposes of Section 2.11, (ii) the scheduled amortization
payments (in so far as such schedule affects payments due to Lenders participating in the relevant Class) set forth in Section
2.10 shall be adjusted to give effect to such Extension of the relevant Class and (iii) except as set forth in clause (a)(viii)
above, no Extension Offer is required to be in any minimum amount or any minimum increment; provided that the Parent Borrower
may, at its election, specify as a condition (a “Minimum Extension Condition”) to consummating such Extension that
a minimum amount (to be determined and specified in the relevant Extension Offer in the Parent Borrower’s sole discretion and which
may be waived by the Parent Borrower in its sole discretion) of Loans or commitments (as applicable) of any or all applicable Classes
be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section
2.23 (including, for the avoidance of doubt, any payment of any interest, fees or premium in respect of any tranche of Extended Term
Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive
the requirements of any provision of this Agreement (including Sections 2.10, 2.11 or
2.18) or any other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated
by this Section.
(c)
No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A)
the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or
a portion thereof), (B) with respect to any Extension of the Revolving Credit
Commitments, the consent of each Issuing Bank to the extent the commitment to provide Letters of Credit is to be extended and (C)
with respect to any Extension of the Revolving Credit Commitments, the consent of the Swingline Lender to the extent the swingline facility
is to be extended (in each case which consent shall not be unreasonably withheld or delayed). All Extended Term Loans and Extended Revolving
Credit Commitments and all obligations in respect thereof shall constitute Secured Obligations under this Agreement and the other Loan
Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other Secured Obligations under this
Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments
to this Agreement and the other Loan Documents with any Loan Parties as may be necessary in order to establish new tranches or sub-tranches
in respect of Loans or commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion
of the Administrative Agent and the Parent Borrower in connection with the establishment of such new tranches or sub-tranches, in each
case on terms consistent with this Section 2.23.
(d)
In connection with any Extension, the Parent Borrower shall provide the Administrative Agent at least ten Business Days’
(or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures
(including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities
hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably
to accomplish the purposes of this Section 2.23.
Article
3 REPRESENTATIONS
AND WARRANTIES
On
the dates and to the extent required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely
with respect to Sections 3.01, 3.02, 3.03, 3.06, 3.07, 3.08,
3.09, 3.12, 3.13, 3.14, 3.16 and 3.17) and each Borrower
hereby represent and warrant to the Lenders that:
Section
3.01. Organization;
Powers. Each of Holdings, each Borrower and each of their Restricted Subsidiaries (a)
is (i) duly organized and validly existing and (ii)
in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction of organization,
(b) has all requisite organizational power and authority to own its property and
assets and to carry on its business as now conducted and (c) is qualified to do
business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction) in, every jurisdiction where its
ownership, lease or operation of properties or conduct of its business requires such qualification; except, in each case referred to
in this Section 3.01 (other than clause (a)(i) and (b), in each case with
respect to the Parent Borrower) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result
in a Material Adverse Effect.
Section
3.02. Authorization;
Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents to which such Loan Party
is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized by all necessary
corporate or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has been duly executed
and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its
terms, subject to the Legal Reservations.
Section
3.03. Governmental
Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto and the performance by
such Loan Party thereof (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except (i)
such as have been obtained or made and are in full force and effect, (ii) in
connection with the Perfection Requirements and (iii) such consents, approvals,
registrations, filings, or other actions the failure to obtain or make which would not be reasonably expected to have a Material Adverse
Effect, (b) will not violate any (i)
of such Loan Party’s Organizational Documents or (ii) Requirements of
Law applicable to such Loan Party which, in the case of this clause (b)(ii), would reasonably be expected
to have a Material Adverse Effect and (c) will not violate or result in a default
under (i) the Second Lien Credit Agreement or (ii)
any other material Contractual Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount
to which such Loan Party is a party which, in the case of this clause (c), would reasonably be expected to result
in a Material Adverse Effect.
Section
3.04. Financial
Condition; No Material Adverse Effect.
(a)
After the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a)
or (b), as applicable, present fairly, in all material respects, the financial position, results of operations
and cash flows of the Parent Borrower on a consolidated basis as of such dates and for such periods in accordance with GAAP, (w) except
as otherwise expressly noted therein, (x) subject, in the case of financial statements provided pursuant to Section
5.01(a), to the absence of footnotes and normal year-
end audit adjustments
and (y) except as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b)
Since the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
Section
3.05. Properties.
(a)
[Reserved.]
(b)
The Parent Borrower and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or
valid leasehold interests in, or easements or other limited property interests in, all of their respective Real Estate Assets, free and
clear of all Liens except for Permitted Liens and have good title to their personal property and assets, in each case material to the
business, except (i) for defects in title that do not materially interfere with
their ability to conduct their business as currently conducted or to utilize such properties and assets for their intended purposes or
(ii) where the failure to have such title or interest would not reasonably be
expected to have a Material Adverse Effect.
(c)
The Parent Borrower and each of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks,
Copyrights and other rights in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all
other intellectual property rights (“IP Rights”) necessary to the conduct of the businesses of the Parent Borrower
and its Restricted Subsidiaries as presently conducted, and, to the knowledge of the Parent Borrower, such IP Rights do not infringe
or misappropriate the IP Rights of any third party, except to the extent such failure to own or license or have rights to use would not,
or where such infringement or misappropriation would not, reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section
3.06. Litigation
and Environmental Matters. Except as set forth on Schedule 3.06:
(a)
there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge
of the Parent Borrower, threatened in writing against or affecting Holdings, the Parent Borrower or any of its Restricted Subsidiaries
which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect;
(b)
except for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, (i) none of Holdings, any Borrower nor any of their Restricted Subsidiaries
has received written notice of any claim with respect to any Environmental Liability, knows of any basis for any Environmental Liability
or, to the knowledge of the Parent Borrower, has become subject to any Environmental Liability and (ii)
none of Holdings, any Borrower nor any of their Restricted Subsidiaries is in violation of any Environmental Law or has not obtained,
maintained, or complied with any permit, license or other approval required under any Environmental Law; and
(c)
none of Holdings, any Borrower nor any of their Restricted Subsidiaries has treated, stored, transported, Released or disposed
of any Hazardous Material at or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge
of the Parent Borrower, has any Hazardous Material been Released from any third-party location relating to the Parent Borrower’s
or any of its Restricted Subsidiaries’ businesses, in each case in a manner that would reasonably be expected to have a Material
Adverse Effect.
Section
3.07. Compliance with Laws. Each of Holdings, each Borrower and
each of their Restricted Subsidiaries is in compliance with all Requirements of Law applicable to it or its property, except, in each
case where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect,
it being understood and agreed that this Section 3.07 shall not apply to any law specifically referenced in Section
3.17.
Section
3.08. Investment
Company Status. No Loan Party is required to be registered as an “investment company” under the Investment Company Act
of 1940.
Section
3.09. Taxes.
Each of Holdings, each Borrower and each of their Restricted Subsidiaries has timely filed or caused to be filed all Tax returns and
reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that are due and payable,
except (a) Taxes that are being contested in good faith by appropriate proceedings
and for which Holdings, such Borrower or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance
with GAAP or (b) to the extent that the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section
3.10. ERISA.
(a)
Each Pension Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws
and regulations, except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b)
No ERISA Event has occurred in the five-year period prior to the date on which this representation is made or deemed made and
is continuing or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, would reasonably be expected to result in a Material Adverse Effect.
Section
3.11. Disclosure.
(a)
As of the Closing Date, to the knowledge of the Parent Borrower, all written factual information (other than the Projections,
the model delivered to the Arrangers on June 4, 2017, other forward-looking or projected information, pro forma information and information
of a general economic or general industry nature (including any reports or memos prepared by third party consultants)) concerning Holdings,
the Parent Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information Memorandum or otherwise
prepared by or on behalf of the foregoing or Holdings, the Parent Borrower or its Restricted Subsidiaries or their respective representatives
and made available to any Initial Lender or the Administrative Agent in connection with the Transactions on or before the Closing Date
(the “Information”), when taken as a whole, did not, when furnished, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the
circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to time).
(b)
The Projections have been prepared in good faith based upon assumptions believed by the Parent Borrower to be reasonable at the
time furnished (it being recognized that such Projections are not to be viewed as facts and are subject to significant uncertainties
and contingencies many of which are beyond the Parent Borrower’s control, that no assurance can be given that any particular financial
projections (including the Projections) will be realized, that actual results may differ from projected results and that such differences
may be material).
Section
3.12. Solvency. As of the Closing Date, immediately
after the consummation of the Transactions to occur on the Closing Date and the incurrence of indebtedness and obligations on the Closing
Date in connection with this Agreement and the Transactions, (i) the sum of the debt (including contingent liabilities) of Holdings and
its Subsidiaries, taken as a whole, does not exceed the fair value of the assets of Holdings and its Subsidiaries, taken as a whole;
(ii) the present fair saleable value of the assets of Holdings and its Subsidiaries, taken as a whole, is not less than the amount that
will be required to pay the probable liabilities (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole,
on their debts as they become absolute and matured; (iii) the capital of Holdings and its Subsidiaries, taken as a whole, is not unreasonably
small in relation to the business of Holdings and its Subsidiaries, taken as a whole, contemplated as of the Closing Date; and (iv) Holdings
and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations
and contingent liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business. For the purposes
hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of
whether such contingent liability meets the criteria for accrual under Statement of Financial Accounting Standards No. 5).
Section
3.13. Capitalization
and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Amendment No. 8 Effective Date, (a)
a correct and complete list of the name of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable
subsidiary and (b) the type of entity of Holdings and each of its subsidiaries.
Section
3.14. Security
Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Legal Reservations,
the Perfection Requirements, the provisions, limitations and/or exceptions set forth in this Agreement and/or the other relevant Loan
Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor Agreement), the Collateral Documents create legal,
valid and enforceable Liens on all of the Collateral in favor of the Administrative Agent, for the benefit of itself and the other Secured
Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens constitute perfected Liens (with the priority
such Liens are expressed to have within the relevant Collateral Documents) on the Collateral (to the extent such Liens are required to
be perfected under the terms of the Loan Documents) securing the Secured Obligations, in each case as and to the extent set forth therein.
For the avoidance of doubt, notwithstanding anything herein or in any other Loan Document to the contrary, neither the Parent Borrower
nor any other Loan Party makes any representation or warranty (other than any representation or warranty expressly made in such Loan
Document) as to (A) the effects of perfection or non-perfection, the priority
or the enforceability of any pledge of or security interest in any Capital Stock of any Foreign Subsidiary, or as to the rights and remedies
of the Administrative Agent or any Lender with respect thereto, under foreign Requirements of Law, (B) the
enforcement of any security interest, or right or remedy with respect to any Collateral that may be limited or restricted by, or require
any consent, authorization approval or license under, any Requirement of Law, (C)
on the Closing Date and until required pursuant to Section 5.12 or the last paragraph of Section
4.01, as applicable, the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority
or enforceability of any pledge or security interest to the extent the same is not required on the Closing Date pursuant to the final
paragraph of Section 4.01 or (D) any Excluded Asset.
Section
3.15. Labor
Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have a Material
Adverse Effect: (a) there are no strikes, lockouts or slowdowns against the Parent
Borrower or any of its Restricted Subsidiaries pending or, to the knowledge of the Parent Borrower or any of its Restricted Subsidiaries,
threatened in writing and (b) the hours worked by and payments made to employees
of the Parent Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters.
Section
3.16. Federal Reserve Regulations. No part of the
proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately,
for any purpose that results in a violation of the provisions of Regulation U and X.
Section
3.17. Sanctions
and Anti-Corruption Laws.
(a)
(i)(i) None of Holdings, the Parent Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Parent Borrower,
any director, officer, agent, employee or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii)
no Borrower will not directly or, to its knowledge, indirectly, use the proceeds of the Loans or otherwise make available such proceeds
to any Sanctioned Person, for the purpose of financing the activities of any Sanctioned Person, or in any Sanctioned Country, or in any
other matter, in each case, that would result in a violation by any Person party to this Agreement of Sanctions.
(b)
Each Loan Party is in compliance with applicable Sanctions in all material respects.
(c)
No part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Parent Borrower,
indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for
political office, or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation
of the U.S. Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
Article
4 CONDITIONS
Section
4.01. Closing
Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall not become effective
until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a)
Credit Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party
party thereto (i) a counterpart signed by each such Loan Party (or written evidence
reasonably satisfactory to the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method) that
such party has signed a counterpart) of (A) this Agreement, (B)
the Security Agreement, (C) the Loan Guaranty, (D)
the Intercreditor Agreement and (E) any Promissory Note requested by a Lender
at least three Business Days prior to the Closing Date and (ii) a Borrowing
Request as required by Section 2.03.
(b)
Legal Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and
each Issuing Bank on the Closing Date, a customary written opinion of (i) Davis
Polk & Wardwell LLP, in its capacity as special New York counsel for Holdings, the Parent Borrower and the Subsidiary Guarantors,
(ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings,
the Parent Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the
Parent Borrower and the Subsidiary Guarantors.
(c)
Financial Statements and Pro Forma Financial Statements. The Administrative Agent shall have received, (i)
(x) audited consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements
of operations, comprehensive loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, the
three most recently completed fiscal years ended at least 110 days prior to the Closing Date and (y) an unaudited consolidated balance
sheet of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive
loss, cash flows and stockholders’ equity of the Target and its
consolidated subsidiaries
for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of the Target and its consolidated subsidiaries
subsequent to the last fiscal year for which financial statements were delivered pursuant to the preceding clause (x) and ended
at least 46 days before the Closing Date (in the case of this clause (y), without footnotes) and (ii)
a unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of income or operations of the
Target as of, and for the twelve-month period ending on, the last day of the most recently completed four-fiscal quarter period ended
at least 46 days (or 110 days, in case such four-fiscal quarter period is the end of the Target’s fiscal year) prior to the Closing
Date, 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 such statement of income or operations), which need not be prepared in compliance
with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments
of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, (formerly SFAS 141R)) (it being
understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined
by the Parent Borrower). The Administrative Agent hereby acknowledges receipt of the financial statements referred to (i) in clause
(i)(x) above in respect of the fiscal years ended July 29, 2014, June 28, 2015 and July 3, 2016, (ii) in clause
(i)(y) above in respect of the fiscal quarters ended October 2, 2016, January 1, 2017 and April 2, 2017 and (iii) in
clause (ii) above in respect of the pro forma financial statements.
(d)
Closing Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have
received (i) a certificate of each Loan Party, dated the Closing Date and executed
by a secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A)
certify that attached thereto is a true and complete copy of the resolutions or written consents of its shareholders, board of directors,
board of managers, members or other governing body authorizing the execution, delivery and performance of the Loan Documents to which
it is a party and, in the case of the Parent Borrower, the borrowings and issuance of Promissory Notes (if any) hereunder, and that such
resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B)
identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party
authorized to sign the Loan Documents to which it is a party on the Closing Date and (C)
certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum
of association or other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization
of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that
such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the
only amendments thereto as of such date) and (ii) a good standing (or equivalent)
certificate (if applicable) as of a recent date for such Loan Party from the relevant authority of its jurisdiction of organization.
(e)
Representations and Warranties. (i) The Specified Acquisition Agreement
Representations shall be true and correct in all material respects as of the Closing Date solely to the extent required by the terms
of the definition thereof and (ii) the Specified Representations shall be true
and correct in all material respects on and as of the Closing Date; provided that (A)
in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall
be true and correct in all material respects as of the respective date or for the respective period, as the case may be and (B)
if any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change”
or similar term or qualification, the definition thereof shall be the definition of “Closing Date Material Adverse Effect”
for purposes of the making or deemed making of such Specified Representation on, or as of, the Closing Date (or any date prior thereto).
(f)
Fees. Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent
shall have received (i) all fees required to be paid by the Parent Borrower on
the Closing Date pursuant to the Fee Letter and (ii) all expenses required to
be paid by the Parent Borrower for which invoices have been presented at least three Business Days prior to the Closing Date (including
the reasonable fees and expenses of legal counsel for the Administrative Agent that are payable under the Commitment Letter entered into
between the Arrangers and the Parent Borrower with respect to the Credit Facilities), in each case on or before the Closing Date, which
amounts may be offset against the proceeds of the Loans or may be paid from the proceeds of the Initial Loans.
(g)
[Reserved.]
(h)
Refinancing. Prior to or substantially concurrently with the initial funding of the Loans hereunder, including by use of
proceeds thereof, the principal, accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not
then due and payable or that by their terms survive the termination of the Existing Credit Facilities and (y) the Existing Letters of
Credit, all of which, on the Closing Date will be deemed to be Letters of Credit issued hereunder) under the First Lien Credit Agreement
dated as of September 19, 2016 and the Second Lien Credit Agreement dated as of September 19, 2016 (in each case, as amended, supplemented
or otherwise modified from time to time prior to the Closing Date, the “Existing Credit Facilities”), will be repaid
in full and all commitments to extend credit under the Existing Credit Facilities will be terminated and any security interests and guarantees
in connection therewith shall be terminated and/or released (the “Refinancing”).
(i)
Equity Contribution. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Equity
Contribution shall have been made substantially in the manner and at least in the amount set forth in the definition of Equity Contribution
contained herein (to the extent not otherwise applied to the Transactions).
(j)
Solvency. The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the
form of Exhibit M from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Target
certifying as to the matters set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of the Target
and its subsidiaries on a consolidated basis in form and substance reasonably satisfactory to the Lead Arrangers issued by a nationally
recognized firm reasonably acceptable to the Lead Arrangers).
(k)
Perfection Certificate. Subject to the last paragraph of this Section 4.01, the Administrative
Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of each Loan
Party, together with all attachments contemplated thereby.
(l)
Pledged Stock; Stock Powers; Pledged Notes. Subject to the last paragraph of this Section 4.01,
the Administrative Agent (or its bailee) shall have received (i) the certificates
representing the Capital Stock required to be pledged pursuant to the Security Agreement, together with an undated stock or similar power
for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii)
each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement endorsed (without recourse) in blank
(or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m)
Filings Registrations and Recordings. Subject to the last paragraph of this Section 4.01, each
document (including any UCC financing statement) required by any Collateral Document or under law to be filed, registered or recorded
in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required
to be delivered pursuant to such Collateral Document, shall be in proper form for filing, registration or recordation.
(n)
Transactions. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Acquisition shall
be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications,
amendments, consents or waivers thereto, other than those modifications, amendments, consents or waivers by Merger Sub 1 or its Affiliates
that are materially adverse to the interests of the Lenders in their capacities as such, unless consented to in writing by the Arrangers
(such consent not to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (a) any changes to, or waivers,
consents or approvals by Merger Sub 1 or its Affiliates in respect of, the definition of Closing Date Material Adverse Effect shall be
deemed materially adverse, (b) any reduction in the purchase price of less than 10% or in accordance with the Acquisition Agreement (including
pursuant to any working capital or purchase price adjustment provision set forth in the Acquisition Agreement) shall be deemed not to
be materially adverse, (c) any other reduction in the purchase price shall be deemed not to be materially adverse so long as such decrease
is allocated first to reduce the Equity Contribution to the Minimum Equity Percentage, with any excess then allocated to reduce the Equity
Contribution, the principal amount of the Term Loans and the second lien term loans under the Second Lien Facility on a pro rata, dollar-for-dollar
basis and (d) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is funded by an
increase in the Equity Contribution or amounts available to be drawn under the Revolving Facility on the Closing Date or such increase
is pursuant to any working capital or purchase price (or similar) adjustment provision set forth in the Acquisition Agreement.
(o)
Closing Date Material Adverse Effect. Since June 6, 2017, there shall have not been an event, change, effect or circumstance
that, individually or in the aggregate has had, or that would reasonably be expected to result in, a Closing Date Material Adverse Effect.
(p)
USA PATRIOT Act. No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have
received all documentation and other information reasonably requested in writing by the Administrative Agent with respect to any Loan
Party at least ten Business Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT
Act.
For
purposes of determining whether the conditions specified in this Section
4.01 have been satisfied on the Closing Date, by funding the Loans hereunder, the Administrative Agent and each Lender that has executed
this Agreement (or an Assignment and Assumption on the Closing Date) shall be deemed to have consented to, approved or accepted, or to
be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to
the Administrative Agent or such Lender, as the case may be.
Notwithstanding
the foregoing, to the extent any Lien search or Collateral (including the creation or perfection of any security interest) is not or
cannot be provided on the Closing Date (other than, (i) a Lien on Collateral of
any Loan Party that may be perfected by the filing of a financing statement under the UCC (without need for any other action) and (ii)
a pledge of the Capital Stock of the Parent Borrower, the Subsidiary Guarantors and each other wholly-owned Material Domestic Restricted
Subsidiary to the extent certificated with respect to which a Lien may be perfected on the Closing Date by the delivery of a stock or
equivalent certificate, together with a related stock or equivalent power executed in blank) after the Parent Borrower’s use of
commercially reasonable efforts to do so without undue burden or expense (and with respect to the delivery of stock or equivalent certificates
of relevant subsidiaries of the Target whose Capital Stock is required to be pledged pursuant to the Security Agreement, only to the
extent received after the Parent Borrower’s use of commercially reasonable efforts to do so), then the provision of any such Lien
search and/or the provision and/or perfection of such Collateral shall not constitute a condition precedent to the availability and initial
funding of the Loans on the Closing Date but may, if required, instead be
delivered and/or
perfected 90 days after the Closing Date pursuant to arrangements to be mutually agreed between the Parent Borrower and the Administrative
Agent and subject to extensions as are reasonably agreed by the Administrative Agent.
Section
4.02. Each Credit
Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension (which, for the avoidance of
doubt (including for purposes of the last paragraph of this Section 4.02), shall not include (A) any Incremental
Loans advanced in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B)
any Credit Extension under any Incremental Facility Amendment, Refinancing Amendment and/or Extension Amendment, in each case to the
extent not otherwise required by the lenders in respect of thereof) is subject to the satisfaction of the following conditions:
(a)
(i)(i) In the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section
2.03, (ii) in the case of the issuance of a Letter of Credit, the applicable
Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit as required by
Section 2.05(b) or (iii) in the case of a Borrowing
of Swingline Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section
2.04(a).
(b)
The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true
and correct in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations
and warranties had been made on and as of the date of such Credit Extension; provided that to the extent that any representation
and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or
for such period; provided further that, during the Covenant Waiver Period, for purposes of this Section
4.02(b), as it pertains to the obligation of any Revolving Lender to make a Credit Extension, events and circumstances surrounding,
and/or any matters or impacts arising from, related to, or in connection with, the outbreak and spread of the novel coronavirus known
as COVID-19 shall not constitute, result in or otherwise have (or reasonably be expected to constitute, result in or otherwise have)
a Material Adverse Effect of the type described in clause (b)(i) of the definition thereof, and in each case shall be disregarded.
(c)
At the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have
occurred and be continuing.
Each
Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof
as to the matters specified in paragraphs (b) and (c)
of this Section.
Article
5 AFFIRMATIVE
COVENANTS
From
the Closing Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and the
principal of and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than contingent
indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have
expired or have been terminated (or have been (x) collateralized or back-stopped by a letter of credit or otherwise in a manner reasonably
satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks or (y) deemed reissued under another agreement
in a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks) and all LC Disbursements
have been reimbursed (such date, the “Termination Date”), Holdings (solely with respect to Sections 5.02
and 5.03) and each Borrower hereby covenant
and agree with the Lenders that:
Section
5.01. Financial Statements and Other Reports. The
Parent Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender:
(a)
Quarterly Financial Statements. As soon as available, and in any event within 45 days (or 90 days in the case of the first
Fiscal Quarter ending after the Closing Date and 75 days in the case of the second and third Fiscal Quarters ending after the Closing
Date) after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about
September 30, 2017, (i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related unaudited
consolidated statements of income and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible Officer Certification
(which may be included in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report; provided that
such financial statements shall only be required to reflect Holdings’ good faith estimate of any purchase accounting adjustments
relating to (A) the Acquisition for any Fiscal Quarter prior to on or about June
30, 2018 and (B) any acquisition consummated after the Closing Date until the
last day of the Fiscal Quarter ending on or about June 30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition
was consummated;
(b)
Annual Financial Statements. As soon as available, and in any event within 120 days (or, in the case of the Fiscal Year
ending on or about June 30, 2017, 150 days) after the end of each Fiscal Year ending after the Closing Date, (i)
the consolidated balance sheet of Holdings as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’
equity and cash flows of Holdings for such Fiscal Year and, commencing after the completion of the second full Fiscal Year ended after
the Closing Date, setting forth, in reasonable detail, in comparative form the corresponding figures for the previous Fiscal Year and
(ii) with respect to such consolidated financial statements, (A) a report thereon
of an independent certified public accountant of recognized national standing or another accounting firm reasonably acceptable to the
Administrative Agent (which report shall be unqualified as to “going concern” and scope of audit (except for any such qualification
pertaining to, or disclosure of an exception or qualification resulting from, the maturity (or impending maturity) of any Credit Facility,
any Second Lien Facility or any other Indebtedness occurring within one year of the date of delivery of the relevant audit opinion, any
breach or anticipated breach of any financial covenant or the activities, operations, financial results, assets or liabilities of any
Unrestricted Subsidiary), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated
financial position of Holdings as at the dates indicated and its income and cash flows for the periods indicated in conformity with GAAP
and (B) a Narrative Report;
(c)
Compliance Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements
of Holdings pursuant to Section 5.01(a) or 5.01(b) with respect to any Fiscal
Quarter or Fiscal Year, as applicable, a duly executed and completed Compliance Certificate and (ii) within 5 Business Days after the
delivery of financial statements of Holdings pursuant to Section 5.01(b), (A) a summary (which may be in
footnote form) of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such financial
statements and (B) a list identifying each subsidiary of the Parent Borrower as a Restricted Subsidiary or an Unrestricted Subsidiary
as of the date of delivery of such financial statements or confirming that there is no change in such information since the later of
the Closing Date and the most recent prior delivery of such information;
(d)
[Reserved];
(e)
Notice of Default or Event of Default. Promptly upon any Responsible Officer of the Parent Borrower obtaining knowledge
of (i) any Default or Event of Default or (ii)
the occurrence of
any event or change
that has caused or evidences or would reasonably be expected to cause or evidence, either in any case or in the aggregate, a Material
Adverse Effect, a reasonably detailed notice specifying the nature and period of existence of such condition, event or change and what
action the Parent Borrower has taken, is taking and proposes to take with respect thereto;
(f)
Notice of Litigation. Promptly upon any Responsible Officer of the Parent Borrower obtaining knowledge of (i)
the institution of any Adverse Proceeding not previously disclosed in writing by the Parent Borrower to the Administrative Agent or (ii)
any material development in any Adverse Proceeding that, in the case of either clauses (i) or (ii),
would reasonably be expected to have a Material Adverse Effect, written notice thereof by the Parent Borrower together with such other
non-privileged information as may be reasonably available to the Loan Parties to enable the Lenders to evaluate such matters;
(g)
ERISA. Promptly upon any Responsible Officer of the Parent Borrower becoming aware of the occurrence of any ERISA Event
that would reasonably be expected to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h)
[Reserved];
(i)
Information Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date
as the Administrative Agent may agree) written notice of any change (i) in any
Loan Party’s legal name, (ii) in any Loan Party’s type of organization,
(iii) in any Loan Party’s jurisdiction of organization or (iv)
in any Loan Party’s organizational identification number, in each case to the extent such information is necessary to enable the
Administrative Agent to perfect or maintain the perfection and priority of its security interest in the Collateral of the relevant Loan
Party, together with certified copies of the applicable Organizational Documents reflecting the relevant change;
(j)
Certain Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect
to any such information that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i)
all financial statements, material reports, material notices and proxy statements sent or made available generally by Holdings to its
security holders acting in such capacity and (ii) all material regular and periodic
reports and all material registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Parent
Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or any analogous governmental or private
regulatory authority with jurisdiction over matters relating to securities (other than amendments to any registration statement (to the
extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable,
any registration statement on Form S-8 or a similar form); provided that no such delivery shall be required hereunder with respect to
any of the foregoing to the extent that such are publicly available via EDGAR; and
(k)
Other Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent
may reasonably request from time to time regarding the financial condition or business of the Parent Borrower and its Restricted Subsidiaries;
provided, however, that none of Holdings, the Parent Borrower or any Restricted Subsidiary shall be required to disclose or provide any
information (i) that constitutes non-financial trade secrets or non-financial proprietary information of Holdings, the Parent Borrower
or any of its subsidiaries or any of their respective customers and/or suppliers, (ii) in respect of which disclosure to the Administrative
Agent or any Lender (or any of their respective representatives) is prohibited by any applicable Requirement of Law, (iii) that is subject
to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which Holdings, the Parent Borrower
or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were not
entered into solely in contemplation of the requirements
of this Section
5.01(k)); provided, further, that in the event the Parent Borrower does not provide any certificate, report or information
requested pursuant to this clause (k) in reliance on the preceding proviso, the Parent Borrower shall provide notice
to the Administrative Agent that such certificate, report or information is being withheld and the Parent Borrower shall use commercially
reasonable efforts to describe, to the extent both feasible and permitted under applicable Requirements of Law or confidentiality obligations,
or without waiving such privilege, as applicable, the applicable certificate, report or information.
Documents
required to be delivered pursuant to this Section 5.01
may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i)
on which the Parent Borrower (or a representative thereof) (x) posts such documents or (y) provides a link thereto at the website address
listed on Schedule 9.01 (as updated from time to time); provided that, other than with respect to items required to be
delivered pursuant to Section 5.01(j) above, the
Parent Borrower shall promptly notify (which notice may be by facsimile or electronic mail) the Administrative Agent of the posting of
any such documents on such website and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents; (ii) on which such documents are delivered by the Parent
Borrower to the Administrative Agent for posting on behalf of the Parent Borrower on IntraLinks, SyndTrak or another relevant 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); (iii) on which such documents are faxed to the
Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv)
in respect of the items required to be delivered pursuant to Section
5.01(j) above in respect of information filed by Holdings, the Parent Borrower or any of its Restricted Subsidiaries with any securities
exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities
(other than Form 10-Q Reports and Form 10-K Reports), on which such items have been made available on the SEC website or the website
of the relevant analogous governmental or private regulatory authority or securities exchange.
Notwithstanding
the foregoing, the obligations in paragraphs (a) and (b)
of this Section 5.01 may be satisfied with respect
to any financial statements of Holdings by furnishing (A) the applicable financial
statements of the Parent Borrower (or any Parent Company) or (B) the Parent Borrower’s
(or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC or any securities exchange, in each
case, within the time periods specified in such paragraphs; provided that, with respect to each of clauses (A)
and (B), (i) to the extent such financial statements
relate to any Parent Company, such financial statements shall be accompanied by consolidating information (which consolidating information
need not be audited) that summarizes in reasonable detail the differences between the information relating to such Parent Company, on
the one hand, and the information relating to the Parent Borrower or Holdings on a standalone basis, on the other hand, which consolidating
information shall be certified by a Responsible Officer of Holdings as having been fairly presented in all material respects and (ii)
to the extent such statements are in lieu of statements required to be provided under Section
5.01(b), such statements shall be accompanied by a report and opinion of an independent registered public accounting firm of nationally
recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion shall satisfy
the applicable requirements set forth in Section 5.01(b)
as if the references to “Holdings” or “the Parent Borrower” (as applicable) therein were references to such
Parent Company.
No
financial statement required to be delivered pursuant to Section
5.01(a) or (b) shall be required to include
acquisition accounting adjustments relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is
not practicable to include any such adjustments in such financial statement.
Section
5.02. Existence.
Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization
or the consummation of a Holdings Reorganization
Transaction, Holdings
and the Parent Borrower will, and the Parent Borrower will cause each of its Restricted Subsidiaries to, at all times preserve and keep
in full force and effect its existence and all rights, franchises, licenses and permits material to its business except, other than with
respect to the preservation of the existence of the Parent Borrower, to the extent that the failure to do so would not reasonably be
expected to result in a Material Adverse Effect; provided that neither Holdings nor the Parent Borrower nor any of the Parent
Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than with respect to the preservation
of existence of the Parent Borrower, except as otherwise permitted under Section 6.07 or as a result of the
consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible Officer of such Person or such Person’s
board of directors (or similar governing body) determines that the preservation thereof is no longer desirable in the conduct of the
business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to the Lenders.
Section
5.03. Payment
of Taxes. Holdings and the Parent Borrower will, and the Parent Borrower will cause each of its Restricted Subsidiaries to, pay all
Taxes imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any penalty
or fine accrues thereon; provided that no such Tax need be paid if (a)
it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (i)
adequate reserves or other appropriate provisions, as are required in conformity with GAAP, have been made therefor and (ii)
in the case of a Tax which has or may become a Lien against a material portion of the Collateral, such contest proceedings conclusively
operate to stay the sale of such portion of the Collateral to satisfy such Tax or (b)
failure to pay or discharge the same would not reasonably be expected to result in a Material Adverse Effect.
Section
5.04. Maintenance
of Properties. The Parent Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to be maintained
in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material tangible property
reasonably necessary to the normal conduct of business of the Parent Borrower and its Restricted Subsidiaries and from time to time will
make or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted by this
Agreement or where the failure to maintain such tangible properties or make such repairs, renewals or replacements would not reasonably
be expected to have a Material Adverse Effect.
Section
5.05. Insurance.
Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Parent Borrower will maintain
or cause to be maintained, in each case, as determined by the Parent Borrower in good faith, with financially sound and reputable insurers,
such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the Parent
Borrower and its Restricted 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), with such deductibles, covering
such risks and otherwise on such terms and conditions as shall be customary for such Persons, including, but only if required by applicable
law or regulation, flood insurance with respect to each Flood Hazard Property, in each case in compliance with applicable Flood Insurance
Laws, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing
or interpreting any of the foregoing, as amended or modified from time to time. Each such policy of insurance shall (i)
name the Administrative Agent on behalf of the Secured Parties as a loss payee and mortgagee or an additional insured, as applicable,
thereunder as its interests may appear and (ii) to the extent available from
the relevant insurance carrier, in the case of each casualty insurance policy (excluding any business interruption insurance policy),
contain a loss payable clause or endorsement that names the Administrative Agent, on behalf of the Secured Parties, as the loss payee
thereunder and, to the extent available, provide for at least 30 days’ prior written notice to the Administrative Agent of any
modification or cancellation of such policy
(or 10 days’
prior written notice in the case of the failure to pay any premiums thereunder); provided that the Parent Borrower shall have
45 days after the Closing Date (or such later date as agreed by the Administrative Agent) to comply with the requirements of the foregoing
clauses (i) and (ii) with respect to policies in effect on the Closing Date.
Section
5.06. Inspections.
The Parent Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative designated by the
Administrative Agent to visit and inspect any of the properties of the Parent Borrower and any of its Restricted Subsidiaries at which
the principal financial records and executive officers of the applicable Person are located, to inspect, copy and take extracts from
its and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts with
its and their Responsible Officers and independent public accountants (subject to such accountants’ customary policies and procedures)
(provided that the Parent Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in any such
discussion), all upon reasonable notice and at reasonable times during normal business hours; provided that (x) only the Administrative
Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section
5.06, (y) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only
one such time per calendar year shall be at the expense of the Borrowers; provided, further, that when an Event of Default
exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense
of the Borrowers at any time during normal business hours and upon reasonable advance notice; provided, further that notwithstanding
anything to the contrary herein, neither a Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection,
examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (i)
that constitutes non-financial trade secrets or non-financial proprietary information of a Borrower and its subsidiaries and/or any of
its customers and/or suppliers, (ii) in respect of which disclosure to the Administrative
Agent or any Lender (or any of their respective representatives or contractors) is prohibited by applicable law, (iii)
that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv)
in respect of which Holdings, the Parent Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided
such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section
5.06); provided, further, that in the event any of the circumstances described in the preceding proviso exist, the Parent
Borrower shall provide notice to the Administrative Agent thereof and shall use commercially reasonable efforts to describe, to the extent
both feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as
applicable, the applicable document, information or other matter.
Section
5.07. Maintenance
of Book and Records. The Parent Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books of record and
account containing entries of all material financial transactions and matters involving the assets and business of the Parent Borrower
and its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated financial
statements in accordance with GAAP.
Section
5.08. Compliance
with Laws. The Parent Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the requirements of
all applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA and all Environmental Laws, Sanctions
and the U.S. Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Parent Borrower or the relevant Restricted
Subsidiary to comply would not reasonably be expected to have a Material Adverse Effect.
Section
5.09. Hazardous
Materials Activity.
(a)
The Parent Borrower will deliver to the Administrative Agent:
(i)
reasonably promptly following receipt by the Parent Borrower thereof, copies of all written environmental audits, investigations,
analyses and reports of any kind or character, whether prepared by personnel of the Parent Borrower or any of its Restricted Subsidiaries
or by independent consultants, governmental authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous
Materials Activity that, in each case could reasonably be expected to have a Material Adverse Effect;
(ii)
reasonably promptly following the Parent Borrower becoming aware of the occurrence thereof, written notice describing in reasonable
detail (A) any Release required to be reported by the Parent Borrower or any of
its Restricted Subsidiaries to any federal, state or local governmental or regulatory agency under any applicable Environmental Law,
(B) any remedial action taken by or on behalf of the Parent Borrower or any
of its Restricted Subsidiaries in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened
Environmental Claim, that in the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect;
and
(iii)
reasonably promptly following the sending or receipt thereof by the Parent Borrower or any of its Restricted Subsidiaries, a copy
of any and all written communications with respect to any Release required to be reported by the Parent Borrower or any of its Restricted
Subsidiaries to any federal, state or local governmental or regulatory agency or any Release required to be remediated pursuant to any
Environmental Law, that in each case would reasonably be expected to have a Material Adverse Effect.
(b)
The Parent Borrower shall reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to
take, any and all actions reasonably necessary to (i) cure any violation of Environmental Law by the Parent Borrower or any of its Restricted
Subsidiaries, and, to the extent required by Environmental Law, address with appropriate corrective or remedial action any Release or
threatened Release of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Parent Borrower or any
of its Restricted Subsidiaries and discharge any obligations it may have to any Person thereunder, where failure to do so could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect; provided that it shall not be deemed to be a
violation of this Section 5.09 if the Parent Borrower or its Restricted Subsidiaries are in good faith contesting
such violation or Environmental Claim in accordance with applicable Environmental Law.
Section
5.10. Designation
of Subsidiaries. The Parent Borrower may at any time after the Closing Date designate (or re-designate) any subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no subsidiary may be designated as
an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of the Second Lien Credit Agreement, (ii) as of
the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in any Restricted Subsidiary of the Parent
Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary simultaneously with the aforementioned designation
in accordance with the terms of this Section 5.10) or hold any Indebtedness of or any Lien on any property of the
Parent Borrower or its Restricted Subsidiaries (unless the Parent Borrower or such Restricted Subsidiary is permitted hereunder to incur
such Indebtedness or grant such Lien in favor of such Unrestricted Subsidiary), (iii) no Restricted Subsidiary shall be designated as
an Unrestricted Subsidiary if such subsidiary owns Material Intellectual Property at the time of such designation and (iv) no Additional
Borrower may be designated as an Unrestricted Subsidiary to the extent it remains an Additional Borrower. The designation of any subsidiary
as an Unrestricted Subsidiary shall constitute an Investment by the Parent Borrower therein at the date of designation in an amount equal
to the portion of the fair market value of the net assets of such Restricted
Subsidiary attributable
to the Parent Borrower’s equity interest therein as estimated by the Parent Borrower in good faith (and such designation shall
only be permitted to the extent such Investment is permitted under Section 6.06). The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation
of any then-existing Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a re-designation
of any Unrestricted Subsidiary as a Restricted Subsidiary, the Parent Borrower shall be deemed to continue to have an Investment in the
resulting Restricted Subsidiary in an amount (if positive) equal to (a) the Parent
Borrower’s “Investment” in such Restricted Subsidiary at the time of such re-designation less (b) the
portion of the fair market value of the net assets of such Restricted Subsidiary attributable to the Parent Borrower’s equity therein
at the time of such re-designation. As of the Closing Date, the subsidiaries listed on Schedule 5.10 hereto have been designated
as Unrestricted Subsidiaries.
Section
5.11. Use of
Proceeds. The Borrowers shall use the proceeds of the Revolving Loans (a)
on the Closing Date, (i) to replace, backstop or cash collateralize Existing Letters
of Credit, guarantees or performance or similar bonds or to issue Letters of Credit and (ii)
in an aggregate principal amount of up to $15,000,000 to pay Transaction Costs and expenses and for purchase price and working capital
adjustments, if any, under the Acquisition Agreement and to provide for ordinary course working capital needs and general corporate purposes
and (b) after the Closing Date, to finance the working capital needs and other
general corporate purposes of the Parent Borrower and its subsidiaries (including for capital expenditures, acquisitions, working capital
and/or purchase price adjustments, the payment of transaction fees and expenses (in each case, including in connection with the Acquisition),
other Investments, Restricted Payments, Restricted Debt Payments and any other purpose not prohibited by the terms of the Loan Documents
including, with regard to Amendment No. 6 Replacement and Incremental Revolving Loans made on the Amendment No. 6 Effective Date, if
not already so terminated or repaid, to repay any then-outstanding Initial Revolving Loans and/or, if not already so terminated or repaid,
to repay any loans or other amounts then-outstanding under the Incremental Liquidity Facility Credit Agreement and, in each case, to
pay any accrued and unpaid interest thereon and to pay any fees and expenses associated therewith. The Borrowers shall use the proceeds
of the Swingline Loans made after the Closing Date to finance the working capital needs and other general corporate purposes of the Parent
Borrower and its subsidiaries and any other purpose not prohibited by the terms of the Loan Documents. The Borrowers shall use the proceeds
of the Initial Term Loans (i) to effect all or a portion of the Refinancing, (ii)
to finance all or a portion of the Transactions, the Amendment No. 1 Transactions (including working capital and/or purchase price adjustments
and the payment of Transaction Costs) and (iii) for general corporate purposes.
The Borrowers shall use the proceeds of the Amendment No. 2 Term Loans (x) to repay the Existing Term Loans (as defined in Amendment
No. 2) and for the payment of fees and expenses in connection therewith, together with the accrued and unpaid interest thereon, (y) to
finance all or a portion of the Amendment No. 2 Transactions (including the payment of Transaction Costs) and (z) for general corporate
purposes. The Borrowers shall use the proceeds of the Amendment No. 3 Incremental Term Loans to finance all or a portion of the Amendment
No. 3 Transactions (including the payment of transaction costs) and, as further set forth below, for general corporate purposes (including
any purpose not otherwise prohibited hereunder). The Borrowers shall use the proceeds of the Amendment No. 8 Term Loans (x) to repay
the Existing Term Loans (as defined in Amendment No. 8) and for the payment of fees and expenses in connection therewith, together with
the accrued and unpaid interest thereon, (y) to finance all or a portion of the Amendment No. 8 Transactions (including the payment of
Transaction Costs) and (z) for general corporate purposes (including any purpose not otherwise prohibited hereunder). The Borrowers shall
use the proceeds of the Amendment No. 9 Incremental Term Loans (x) to finance all or a portion of the Amendment No. 9 Transactions (including
the payment of transaction costs) and (y) for general corporate purposes (including any purpose referred to below and any other purpose
not otherwise prohibited hereunder). No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose
that would entail a violation of Regulation U. The Borrowers shall use the proceeds of the Incremental Term Loans for working capital,
capital expenditures and other general corporate purposes of the Parent Borrower and its
subsidiaries (including
for Restricted Payments, Investments, Permitted Acquisitions and any other purpose not prohibited by the terms of the Loan Documents)
(and, in the case of the Amendment No. 1 Incremental Term Loans, the Amendment No. 2 Term Loans, the Amendment No. 3 Incremental Term
Loans, the Amendment No. 8 Term Loans and the Amendment No. 9 Incremental Term Loans (each, as applicable), to finance all or a portion
of the Amendment No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 3 Transactions, the Amendment No. 8 Transactions
and the Amendment No. 9 Transactions, as applicable).
Section
5.12. Covenant
to Guarantee Obligations and Give Security.
(a)
Upon (i) the formation or acquisition after the Closing Date of any Restricted
Subsidiary that is a Domestic Subsidiary (subject to Section 6.06(hh)), (ii)
the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary, (iii)
any Restricted Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv)
any Restricted Subsidiary ceasing to be an Excluded Subsidiary (including by election of the Parent Borrower as set forth herein), (x)
if the event giving rise to the obligation under this Section 5.12(a) occurs during the first three Fiscal
Quarters of any Fiscal Year, on or before the date on which financial statements are required to be delivered pursuant to Section
5.01(a) for the Fiscal Quarter in which the relevant formation, acquisition, designation or cessation occurred or (y) if the event
giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal Quarter of any Fiscal
Year, on or before the date that is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses (x) and (y),
such longer period as the Administrative Agent may reasonably agree), the Parent Borrower shall (A)
cause such Restricted Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in clause (a)
of the definition of “Collateral and Guarantee Requirement” and (B)
upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary (other than any Excluded Subsidiary)
to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such Restricted Subsidiary, addressed to the
Administrative Agent and the other relevant Secured Parties.
(b)
Within 120 days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party
of any Material Real Estate Asset, other than any Excluded Asset, the Parent Borrower shall cause such Loan Party to comply with the
requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood
and agreed that, with respect to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at
the time such Restricted Subsidiary is required to become a Loan Party under Section 5.12(a) above, such
Material Real Estate Asset shall be deemed to have been acquired by such Restricted Subsidiary on the first day of the time period within
which such Restricted Subsidiary is required to become a Loan Party under Section 5.12(a).
Notwithstanding
anything to the contrary herein or in any other Loan Document, (i) the Administrative
Agent may grant extensions of time (including after the expiration of any relevant period, which apply retroactively) for the creation
and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect
to, particular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted
Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time, (ii)
any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall
be subject to the exceptions and limitations set forth in the Collateral Documents, (iii) perfection
by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements,
including deposit accounts, securities accounts and commodities accounts (other than control of pledged Capital Stock and/or Material
Debt Instruments, in each case, that constitute Collateral) and no blocked account agreement, account control agreement or similar agreement
shall be required, (iv) no Loan Party shall be required to seek any landlord
waiver, bailee letter, estoppel,
warehouseman waiver
or other collateral access or similar letter or agreement, (v) no Loan Party will
be required to (1) take any action outside of the United States or grant or perfect
any security interest in any asset located outside of the U.S. or conduct any foreign lien search, (2)
execute any foreign law guarantee, security agreement, pledge agreement, mortgage, deed or charge or (3) make any foreign intellectual
property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule with respect
to any assets of any Loan Party or enter into any source code escrow arrangement or register any intellectual property, (vi)
in no event will the Collateral include any Excluded Assets, (vii) no action
shall be required to perfect any Lien with respect to (x) any vehicle or other asset subject to a certificate of title, or any retention
of title, extended retention of title rights, or similar rights and/or (y) Letter-of-Credit Rights, in each case to the extent that a
security interest therein cannot be perfected by filing a Form UCC-1 (or similar) “all assets” financing statement without
the requirement to list any VIN, serial or other number and (viii) the Administrative
Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost,
burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business
in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or
expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby as reasonably determined by the
Parent Borrower and the Administrative Agent; provided that the foregoing shall not apply and shall not operate to limit the obligation
of the Loan Parties to provide security in foreign jurisdictions (subject to “agreed security principles” to be negotiated
in good faith between the Parent Borrower and the Administrative Agent) if a Foreign Subsidiary becomes a Guarantor.
Additionally, (i)
no action shall be required to create or perfect a Lien in any asset in respect of which the creation or perfection of a security interest
therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise not
prohibited by the terms of this Agreement, (2) violate the terms of any contract relating to such asset that is permitted or otherwise
not prohibited by the terms of this Agreement, in each case, after giving effect to the applicable anti-assignment provisions of the
UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited
by the terms of this Agreement pursuant to any “change of control” or similar provision, it being understood that the Collateral
shall include any proceeds and/or receivables arising out of any contract described in this clause (other than Excluded Assets) to the
extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable Requirements of
Law notwithstanding the relevant prohibition, violation or termination right, (ii) no Loan Party shall be required to create or perfect
a security interest in any asset to the extent the creation or perfection of a security interest in such asset would (A)
be prohibited under any applicable Requirement of Law, after giving effect to any applicable anti-assignment provision of the UCC or
other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of such proceeds
is effective under the UCC or other applicable Requirements of Law notwithstanding such Requirement of Law, (B)
require any governmental consent, approval, license or authorization (unless such consent, approval, license or authorization has been
obtained), after giving effect to any applicable anti-assignment provision of the UCC or other applicable law and other than proceeds
thereof (other than Excluded Assets) to the extent that the assignment of such proceeds is effective under the UCC or other applicable
Requirements of Law notwithstanding such consent or restriction and/or (C) result
in adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries or Parent Companies as determined
by the Parent Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder or supplement to any Loan
Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan
Party pursuant to Section 5.12(a) above may, with
the consent of the Administrative Agent (not to be unreasonably withheld or delayed), include such schedules (or updates to schedules)
as may be necessary to qualify any representation or warranty set forth in any Loan Document to the extent necessary to ensure that such
representation or warranty is true and correct to the extent
required thereby
or by the terms of any other Loan Document; and (iv) (A) no Loan Party will be required to take any action required under the Federal
Assignment of Claims Act or any similar law and (B) no Secured Party will be permitted to exercise any right of setoff in respect of
any account maintained solely for the purpose of receiving and holding government receivables.
Section
5.13. Maintenance
of Ratings. The Parent Borrower shall use commercially reasonable efforts to maintain public corporate credit facility ratings in
respect of the Amendment No. 8 Term Loans and public corporate family ratings in respect of Holdings from each of S&P and Moody’s;
provided that in no event shall the Borrowers be required to maintain any specific rating with any such agency.
Section
5.14. Maintenance
of Fiscal Year. The Parent Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that the Parent
Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Parent Borrower
and the Administrative Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender),
make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year, including a deferral or other adjustment
of the first Excess Cash Flow prepayment date and period following such change to the applicable date and period with respect to such
new fiscal year end and adjustments to the financial reporting requirements hereunder.
Section
5.15. Further
Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations described in Section
5.12:
(a)
The Parent Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements,
agreements, instruments, certificates, notices and acknowledgments and take all such further actions (including the filing and recordation
of financing statements, fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable
law and which the Administrative Agent may reasonably request to ensure the perfection and priority of the Liens created or intended
to be created under the Collateral Documents, all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event
shall any (x) Excluded Property or (y) property subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made
subject to the Collateral Documents.
(b)
The Parent Borrower will, and will cause each other Loan Party to, (i)
correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral
Document or other document or instrument relating to any Collateral and (ii)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including
notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from
time to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section
5.16. Conduct
of Business. The Parent Borrower and its Restricted Subsidiaries shall engage only in those material lines of business that consist
of (a) the businesses engaged in by the Parent Borrower or any Restricted Subsidiary
on the Closing Date, reasonably related, similar, incidental, complementary, ancillary, corollary, synergistic or related businesses
or reasonable extensions, development or expansion (or proposed to be engaged) of such businesses (including entertainment and amusement
media and content business in connection therewith) and (b) such other lines of
business to which the Administrative Agent may consent.
Section
5.17. Annual
Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant to Section
5.01(b) (commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June 30, 2018), the
Parent Borrower shall
participate in
a conference call with Lenders arranged by the Administrative Agent to provide discussion and analysis with respect to the financial
condition and results of operations of the Parent Borrower and its Restricted Subsidiaries at a time at which the Parent Borrower and
the Administrative Agent mutually agree.
Section
5.18. Post-Closing
Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by such later time as the
Administrative Agent may reasonably agree).
Section
5.19. Transactions
with Affiliates. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction
(including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in excess of the
greater of $17,000,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any individual
transaction with any of their respective Affiliates on terms that are substantially less favorable to the Parent Borrower or such Restricted
Subsidiary, as the case may be (as determined by the Parent Borrower in good faith), than those that might be obtained at the time in
a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction shall
not apply to:
(a)
any transaction between or among Holdings, the Parent Borrower and/or one or more Restricted Subsidiaries (or any entity that
becomes a Restricted Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b)
any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or
the funding of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing
body) of any Parent Company or of the Parent Borrower or any Restricted Subsidiary;
(c)
(i)(i) any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including
profit sharing) arrangement entered into by the Parent Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii)
any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar
rights with any Permitted Payee and (iii) payments or other transactions pursuant
to any management equity plan, employee compensation, benefit plan, stock option plan or arrangement, equity holder arrangement, supplemental
executive retirement benefit plan, any health, disability or similar insurance plan, or any employment contract or arrangement which
covers any Permitted Payee and payments pursuant thereto;
(d)
(i)(i) transactions permitted by Sections 6.01(d), (o), (bb) and (ee),
6.04 and 6.06(h), (m), (o),
(t), (v), (x), (y), (z),
(aa), (bb), (cc), (ff),
(gg), (ii), (jj), (kk),
(ll) and (mm), (ii) any Permitted
Reorganization and (iii) issuances of Capital Stock and issuances and incurrences
of Indebtedness not restricted by this Agreement and payments pursuant thereto;
(e)
the existence of, or performance by the Parent Borrower or any Restricted Subsidiary of its obligations under the terms of, any
transaction or agreement in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment,
modification or extension, taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders
than the relevant transaction in existence on the Closing Date;
(f)
(i)(i) so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g)
(solely with respect to the Parent Borrower in the case of Section 7.01(f) and (g))
then exists or would result therefrom, the payment of management, monitoring, consulting, advisory and similar fees to any Investor
in an amount not
to exceed in any Fiscal Year the greater of $3,000,000 and 1% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period, it being understood that (x) during any such Event of Default, such fees may continue to accrue and become payable
upon the waiver, termination or cure of such Event of Default and (y) any amount not paid in any Fiscal Year may be carried forward and
paid in subsequent Fiscal Years without limitation as to amount, but otherwise subject to the requirements of this clause (f),
(ii) customary termination fees payable to the Investors, (iii) customary
compensation to Affiliates in connection with financial advisory, financing, underwriting or placement services or in respect of other
investment banking activities and other transaction fees, which are approved, or made pursuant to arrangements approved, by the majority
of the members of the board of directors (or similar governing body) or a majority of disinterested members of the board of directors
(or similar governing body) of the Parent Borrower in good faith and (iv) the
payment of any indemnification obligations and expenses (and similar amounts) owed to any Investor and any of their respective directors,
officers, members of management, managers, employees and consultants, in each case of clauses (i), (ii),
(iii) and (iv) whether currently due or paid in respect of accruals from prior periods;
(g)
the Transactions, including the payment of Transaction Costs and payments required under the Acquisition Agreement;
(h)
any transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing
body) of the Parent Borrower at such time;
(i)
Guarantees permitted by Section 6.01 or Section 6.06;
(j)
loans and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article
5;
(k)
the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board
of directors (or similar governing body), officers, employees, members of management, managers, consultants and independent contractors
of the Parent Borrower and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such
Person in such capacity on behalf of any Parent Company, to the extent attributable to the operations of the Parent Borrower or its subsidiaries;
(l)
transactions with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers
of employees or other labor entered into in the ordinary course of business, which are (i) fair
to the Parent Borrower and/or its applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar
governing body) of the Parent Borrower or the senior management thereof or (ii) on
terms not substantially less favorable to the Parent Borrower and/or its applicable Restricted Subsidiary as might reasonably be obtained
from a Person other than an Affiliate;
(m)
the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to
shareholders under any shareholder agreement and the existence or performance by the Parent Borrower or any Restricted Subsidiary of
its obligations under any such registration rights or shareholder agreement;
(n)
(i)(i) any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Parent Borrower and (ii)
any intercompany loans made by Holdings to the Parent Borrower or any Restricted Subsidiary;
(o)
any transaction in respect of which the Parent Borrower delivers to the Administrative Agent a letter addressed to the board
of directors (or equivalent governing body) of the Parent Borrower from an accounting, appraisal or investment banking firm of nationally
recognized standing stating that such transaction is on terms that are not substantially less favorable to the Parent Borrower or the
applicable Restricted Subsidiary than might be obtained at the time in a comparable arm’s length transaction from a Person who
is not an Affiliate;
(p)
(i)(i) Investments by Affiliates in Securities or other Indebtedness of the Parent Borrower or any Restricted Subsidiary (and
payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the Investment is being
offered by the Parent Borrower or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments
to Affiliates in respect of Securities or other Indebtedness of the Parent Borrower or any Restricted Subsidiary contemplated in the
foregoing subclause (i) or that were acquired from Persons other than the Parent Borrower and the Restricted Subsidiaries,
in each case, in accordance with the terms of such Securities or other Indebtedness;
(q)
[reserved];
(r)
transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s)
any transaction in connection with the Carlyle Sale/Leaseback, the Carlyle Sale/Leaseback 2014 and/or any Excluded Property Transaction.
Article
6 NEGATIVE
COVENANTS
From
the Closing Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrowers
covenant and agree with the Lenders that:
Section
6.01. Indebtedness.
The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or otherwise become or remain liable with respect to any Indebtedness, except:
(a)
the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b)
Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary (or
issued to any Parent Company which is substantially contemporaneously transferred to the Parent Borrower or any Restricted Subsidiary);
provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the
making of the corresponding loan or advance shall have been permitted as an Investment pursuant to Section 6.06;
provided, further, all such Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be
expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c)
Indebtedness of any Joint Venture or Indebtedness of the Parent Borrower or any Restricted Subsidiary incurred on behalf of any
Joint Venture or any Guarantees by the Parent Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate
outstanding principal amount for all such Indebtedness not to exceed at any time the greater of $85,000,000 and 25% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period;
(d)
Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including
contingent earn-out or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements,
in each case incurred in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder
or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties,
letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Parent Borrower
or any such Restricted Subsidiary pursuant to any such agreement;
(e)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary (i)
pursuant to tenders, statutory obligations (including health, safety and environmental obligations), bids, leases, governmental contracts,
trade contracts, surety, indemnity, stay, customs, judgment, appeal, performance, completion and/or return of money bonds or guaranties
or other similar obligations incurred in the ordinary course of business and (ii)
in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing
items;
(f)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards,
debit cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated
payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository
network services, including Indebtedness arising from the financing by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business), employee credit card programs, cash pooling services,
foreign exchange and currency management services and any arrangements or services similar to any of the foregoing and/or otherwise in
connection with Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar
programs;
(g)
(i)(i) Guarantees by the Parent Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees,
licensees, sublicensees and cross-licensees in the ordinary course of business, (ii)
Indebtedness (A) incurred in the ordinary course of business in respect of obligations of the Parent Borrower and/or any Restricted Subsidiary
to pay the deferred purchase price of property or services or progress payments in connection with such property and services or (B)
consisting of obligations under deferred purchase price or other similar arrangements incurred in connection with Permitted Acquisitions
or any other Investment expressly permitted hereunder and (iii) Indebtedness
in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
(h)
Guarantees (including any co-issuance) by the Parent Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations
of the Parent Borrower and/or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this
Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any
such Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section
6.06;
(i)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated),
on the Amendment No. 8 Effective Date and, with respect to any such item of Indebtedness in an aggregate committed or principal amount
in excess of $1,000,000, described on Schedule 6.01;
(j)
Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount
of such Indebtedness shall not exceed the greater of $85,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period;
(k)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply,
license or similar agreements entered into in the ordinary course of business;
(l)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary consisting of (i) the
financing of insurance premiums, (ii) take-or-pay obligations contained in supply
arrangements in the ordinary course of business and/or (iii) obligations to
reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary with respect to Capital Leases (including, as applicable,
Capital Leases entered into in connection with any Sale and Lease-Back Transaction) and purchase money Indebtedness (including mortgage
financing, industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase, repair,
replacement, lease, installation, maintenance or improvement of any property (real or personal) or any fixed or capital asset, in an
aggregate outstanding principal amount not to exceed the greater of $170,000,000 and 50% of Consolidated Adjusted EBITDA as of the last
day of the most recently ended Test Period (excluding, for the avoidance of doubt, the Carlyle Sale/Leaseback, the Carlyle Sale/Leaseback
2014 and any Excluded Property Sale/Leaseback Transaction);
(n)
Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other
Investment permitted hereunder after the Closing Date; provided that (i) such
Indebtedness (A) existed at the time such Person became a Restricted Subsidiary
or the assets subject to such Indebtedness were acquired and (B) was not created
or incurred in anticipation thereof and (ii) either (A)
the Parent Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of Incremental Cap based
on whether such Indebtedness is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured
or secured by Liens on assets not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred
to finance an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently
ended Test Period or (B) the aggregate outstanding principal amount of such Indebtedness
does not exceed the greater of $85,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period;
(o)
Indebtedness consisting of promissory notes issued by the Parent Borrower or any Restricted Subsidiary to any stockholder of any
Parent Company or any Permitted Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section
6.04(a);
(p)
the Parent Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing,
refunding or replacing any Indebtedness permitted under clauses (a), (c), (i),
(j), (m), (n), (r), (u),
(v), (w), (y), (z), (dd),
(gg), (ll) and (mm) of this Section
6.01 (in any case, including any extending, refinancing, refunding or replacing Indebtedness incurred in respect thereof, “Refinancing
Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that (i)
the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being extended, refinanced,
refunded or replaced, except by (A) an amount equal to unpaid accrued interest,
penalties and premiums (including tender premiums) thereon plus underwriting discounts and other customary fees, commissions and
expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant extension,
refinancing, refunding or replacement, (B) an amount equal to any existing commitments
unutilized
thereunder and
(C) additional amounts permitted to be incurred pursuant to this Section
6.01 (provided that (1) any additional Indebtedness referred to in
this clause (C) satisfies the other applicable requirements of this Section 6.01(p) (with additional
amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which
such additional amount is permitted) and (2) if such additional Indebtedness is
secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02), (ii)
in the case of Refinancing Indebtedness with respect to clauses (a) and (z) (other than
(x) customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other
Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)
and (y) Refinancing Indebtedness having an aggregate principal amount outstanding not exceeding the greater of $170,000,000 and 50%
of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (as selected by the Parent Borrower)), such
Refinancing Indebtedness has (A) a final maturity on or later than (and, in the
case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term
Loan Maturity Date at the time of the incurrence of such Refinancing Indebtedness and (y) the final maturity of the Indebtedness being
extended, refinanced, refunded or replaced and (B) other than with respect to
revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than (x) the Weighted Average Life to Maturity of the
Indebtedness being extended, refinanced, refunded or replaced or (y) the Weighted Average Life to Maturity of the outstanding Term Loans
at the time of the incurrence of such Refinancing Indebtedness, (iii) with
respect to any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than Indebtedness
of the type described in Section 6.01(m)), the terms thereof (excluding pricing, fees, premiums, rate floors,
optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred
in respect of Indebtedness permitted under clause (a) above, security) are not, taken as a whole (as determined
by the Parent Borrower in good faith), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness
being extended, refinanced, refunded or replaced (other than any covenants or any other terms or provisions (X) applicable only to periods
after the Latest Maturity Date at the time of the incurrence of such Refinancing Indebtedness, (Y) that are then-current market terms
(as determined by the Parent Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect
thereto)) for the applicable type of Indebtedness or (Z) solely in the case of Refinancing Indebtedness in respect of Indebtedness incurred
in reliance on clauses (a) and/or (z) of this Section 6.01,
terms or other provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the
Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
(iv) the incurrence thereof shall be without duplication of any amounts outstanding
in reliance on the relevant clause of this Section 6.01 pursuant to which the Indebtedness being extended,
refinanced, refunded or replaced was incurred (i.e., the incurrence of such Refinancing Indebtedness shall not create availability under
such relevant clause), (v) except in the case of Refinancing Indebtedness incurred
in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A)
such Indebtedness, if secured, is secured only by Permitted Liens at the time of such extension, refinancing, refunding or replacement
(it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (B)
such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being extended, refinanced, refunded or replaced,
except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that Holdings may
not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor on the relevant refinanced
Indebtedness) and (C) if the Indebtedness being extended, refinanced, refunded
or replaced was contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were contractually
subordinated to such Liens on the Collateral securing the Secured Obligations), such Indebtedness is contractually subordinated to the
Obligations in right of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the relevant Collateral securing
the Secured Obligations) either (x) on terms not materially less favorable, taken as a whole, to the Lenders than those applicable to
the Indebtedness (or Liens, as applicable) being extended, refinanced, refunded or replaced, taken as a whole or (y) pursuant to an Acceptable
Intercreditor Agreement, (vi) except in the case
of Refinancing
Indebtedness with respect to clause (a) of this Section 6.01, as of the date of the
incurrence of such Indebtedness and after giving effect thereto, no payment or bankruptcy (with respect to the Parent Borrower) Event
of Default exists and (vii) in the case of Refinancing Indebtedness incurred
in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A)
such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu
or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness
that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement, (B)
if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral, (C)
if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D)
such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, it being understood and agreed
that any such Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans as set forth in Section
2.11(a)(i) and (y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi);
(q)
endorsement of instruments or other payment items for collection or deposit in the ordinary course of business;
(r)
Indebtedness in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding
not to exceed the greater of $102,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period;
(s)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative
purposes;
(t)
[reserved];
(u)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed
the greater of $340,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed
100% of the amount of any capital contributions or other proceeds received by the Parent Borrower or any Restricted Subsidiary (i) from
the issuance or sale of its Qualified Capital Stock or (ii) in the form of any cash contribution, plus the fair market value,
as determined by the Parent Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Parent
Borrower or any Restricted Subsidiary from the issuance and sale by it or any Parent Company of its or such Parent Company’s Qualified
Capital Stock or a contribution to the Qualified Capital Stock of any Parent Company, Holdings, the Parent Borrower or any Restricted
Subsidiary (including through consolidation, amalgamation or merger), in each case after the Closing Date, and in each case other than
(A) any proceeds received from the sale of Capital Stock to, or contributions
from, the Parent Borrower or any of its Restricted Subsidiaries, (B) to the extent
the relevant proceeds have otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and
(C) Cure Amounts and/or any Available Excluded Contribution Amount;
(w)
Indebtedness arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $51,000,000
and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(x)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary incurred in respect of (i)
any Second Lien Facility and any “Incremental Loans” and “Incremental Equivalent Debt” (each as defined in the
Second Lien Credit Agreement or any equivalent term under any Second Lien
Facility) in an
aggregate outstanding principal amount that does not exceed $137,500,000 plus the aggregate outstanding principal amount of such
“Incremental Loans” or “Incremental Equivalent Debt” so long as the sum of the aggregate outstanding principal
amount of any such “Incremental Loans” or “Incremental Equivalent Debt” does not exceed the “Incremental
Cap” (as applicable, and each as defined in the Second Lien Credit Agreement as in effect on the Closing Date, including after
giving effect to Sections 1.04(d) and 1.04(e) thereof) and (ii)
any refinancing, refunding or replacing of any Second Lien Facility or any such “Incremental Loans” or “Incremental
Equivalent Debt” after the Closing Date so long as (A) the aggregate outstanding
principal amount of such Indebtedness does not exceed an amount permitted to be incurred under the preceding clause (i),
plus (1) an amount equal to unpaid accrued interest, penalties and premiums
(including tender premiums) thereon, (2) the amount of any underwriting discounts
and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred
in connection with the relevant refinancing, (3) an amount equal to any existing
commitments unutilized thereunder and (4) any additional amounts permitted to
be incurred pursuant to this Section 6.01 (with additional amounts incurred in reliance on this clause
(4) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted),
(B) such Indebtedness, if secured, is secured only by Liens permitted under Section
6.02(t), (C) except with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such Indebtedness is equal to
or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance on this Section
6.01(x) at the time of such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date of such Indebtedness
is equal to or later than the final maturity date of the Indebtedness being refinanced in reliance on this Section
6.01(x) and (E) no such Indebtedness is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other
than the Collateral;
(y)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions
permitted pursuant to Section 6.08;
(z)
Incremental Equivalent Debt; provided that the aggregate principal amount of Incremental Equivalent Debt (excluding, as
applicable, obligations with respect to Capital Leases, purchase money Indebtedness and/or obligations resulting from any Sale and Lease-Back
Transaction) incurred by Restricted Subsidiaries that are not Loan Parties shall not exceed the greater of $170,000,000 and 50% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(aa)
Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar
instruments with respect to such Indebtedness) incurred by the Parent Borrower and/or any Restricted Subsidiary in respect of workers’
compensation claims (or reimbursement type obligations regarding workers’ compensation claims), unemployment insurance (including
premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits
or property, casualty or liability insurance or self-insurance;
(bb)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current and
former directors, officers, employees, members of management, managers and consultants of any Parent Company, the Parent Borrower and/or
any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection
with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(cc)
Indebtedness of the Parent Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued
in favor of any issuing bank or swingline lender to support any defaulting lender’s participation in letters of credit issued,
or swingline loans made, hereunder or under any Additional Letter of Credit Facility;
(dd)
Indebtedness of the Parent Borrower or any Restricted Subsidiary supported by any letter of credit issued hereunder or under
any Additional Letter of Credit Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee)
unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Parent Borrower and/or any Restricted
Subsidiary in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under
Section 7.01(i);
(ff)
without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in
kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the
Parent Borrower and/or any Restricted Subsidiary hereunder;
(gg)
(i) to the extent constituting Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to
remain outstanding after the Closing Date pursuant to the Acquisition Agreement (excluding any Indebtedness required to be refinanced
pursuant to the Refinancing);
(hh)
customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased
in the ordinary course of business;
(ii)
[reserved];
(jj)
(i) Indebtedness in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of
receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length
commercial terms and (ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights
or the settlement of any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition
(by merger, consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(kk)
obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any
subsidiary of the Parent Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions
performed in jurisdictions other than within the United States;
(ll)
Indebtedness in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(mm)
Indebtedness in respect of any Excluded Property Transaction or any transactions under any Carlyle Sale/Leaseback Documents; and
(nn)
Guarantee obligations incurred in the ordinary course of business under repurchase agreements in connection with the financing
of Bowling Equipment sales.
For
the avoidance of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount,
the payment of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section
6.02.
Liens. The Parent
Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit or suffer to exist any
Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any income or profits therefrom,
except:
(a)
Liens created pursuant to the Loan Documents securing the Secured Obligations (including Cash collateralization of Letters of
Credit as set forth in Section 2.05);
(b)
Liens for Taxes or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days
overdue (i) are being contested in accordance with Section 5.03 or (ii) with respect to which the failure
to make payment would not reasonably be expected to have a Material Adverse Effect;
(c)
statutory or common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case
incurred in the ordinary course of business (i) for amounts not yet overdue by
more than 45 days, (ii) for amounts that are overdue by more than 45 days (A)
that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required by
GAAP have been made for any such contested amounts or (B) with respect to which
no filing or other action has been taken to enforce such Lien or (iii) with
respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d)
Liens incurred (i) in the ordinary course of business in connection with
workers’ compensation, unemployment insurance, health, disability or employee benefits and other types of social security laws
and regulations, (ii) in the ordinary course of business to secure the performance
of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, indemnitees,
performance, completion and return-of-money bonds and other similar obligations (including those to secure health, safety and environmental
obligations) (in each case, exclusive of obligations for the payment of borrowed money), (iii)
pursuant to pledges and deposits of Cash or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement,
premium or indemnification obligations of insurance brokers or carriers providing property, casualty, liability or other insurance to
Holdings, the Parent Borrower and its subsidiaries (including deductibles, self-insurance, co-payment, co-insurance and retentions) or
(y) leases or licenses of property otherwise permitted by this Agreement and (iv)
to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments posted
with respect to the items described in clauses (i) through (iii) above;
(e)
Liens consisting of easements, covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers,
drains, gas and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph
or cable television conduits, poles, wires and cables and other similar protrusions or encumbrances and other minor defects or irregularities
in title, in each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the
Parent Borrower and/or its Restricted Subsidiaries, taken as a whole, or materially interfere with the use of the affected property for
its intended purpose or (y) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect;
(f)
Liens consisting of any (i) interest or title of a lessor, sub-lessor,
licensor or sub-licensor under any lease, license or similar arrangement of real estate or other property (including intellectual property)
permitted hereunder, (ii) landlord lien permitted by the terms of any lease,
sub-lease, license, sub-license or similar arrangement, (iii) restriction
or encumbrance to which the interest or title of
such lessor, sub-lessor,
licensor or sub-licensor may be subject, (iv) subordination of the interest
of the lessee, sub-lessee, licensee or sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement to any restriction
or encumbrance referred to in the preceding clause (iii) or (v)
deposit of cash with the owner or lessor of premises leased and operated by the Parent Borrower or any Restricted Subsidiary in the ordinary
course of business to secure the performance of obligations under the terms of the lease for such premises;
(g)
Liens (i) solely on any Cash (or Cash Equivalent) earnest money deposits
(including as part of any escrow arrangement) made by the Parent Borrower and/or any of its Restricted Subsidiaries in connection with
any letter of intent or purchase agreement with respect to any Investment permitted hereunder (or to secure letters of credit, bank guarantees
or similar instruments posted in respect thereof), (ii) on advances of Cash
or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections 6.06(b),
(e), (f), (p), (q), (r),
(u), (x), (y) or (dd)
to be applied against the purchase price for such Investment or (iii) consisting of (A)
an agreement to Dispose of any property in a Disposition permitted under Section 6.07 and/or (B)
the pledge of Cash or Cash Equivalents as part of an escrow or similar arrangement required in any Disposition permitted under Section
6.07;
(h)
precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable
Requirements of Law relating solely to (i) operating leases or consignment or
bailee arrangements entered into in the ordinary course of business, (ii) the
sale of accounts receivable in the ordinary course of business for which a UCC financing statement or similar financing statement under
applicable Requirements of Law is required and/or (iii) the sale of Receivables
Facility Assets and related assets in connection with any Qualified Receivables Facility;
(i)
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;
(j)
Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental
Authority to control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with
any condemnation or eminent domain proceeding or compulsory purchase order;
(k)
Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted
extension, refinancing, refunding or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c),
(i), (j), (m), (n), (r),
(u), (v), (w), (y), (z)
and (gg)); provided that (i) no such Lien
extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced other than (A) after-acquired property
that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section
6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood
that such extensions, refinancings, refundings or replacements of individual financings of the type permitted under Section
6.01(m) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates)
and (ii) if the Indebtedness being refinanced was subject to intercreditor arrangements
in respect of Liens on Collateral, then any refinancing Indebtedness in respect thereof secured by Liens on Collateral shall be subject
to intercreditor arrangements not materially less favorable to the Secured Parties, taken as a whole, than the intercreditor arrangements
governing the Indebtedness that is refinanced or the intercreditor arrangements governing the relevant refinancing Indebtedness shall
be set forth in an Acceptable Intercreditor Agreement;
(l)
Liens existing on, or contractually committed or contemplated as of, the Amendment No. 8 Effective Date and, with respect to each
such Lien securing Indebtedness in an aggregate committed or principal amount in excess of $1,000,000, described on Schedule 6.02
and any modification,
replacement, refinancing,
renewal or extension thereof; provided that (i) no such Lien extends to
any additional property other than property required to be covered thereby and (A)
after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted
under Section 6.01 and (B) proceeds and products thereof,
replacements, accessions or additions thereto and improvements thereon (it being understood that individual financings of the type permitted
under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of such type
provided by such lender or its affiliates) and (ii) any such modification, replacement,
refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by
Section 6.01;
(m)
Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.08;
(n)
Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien
shall encumber only the asset acquired, constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds
and products thereof, replacements, accessions or additions thereto and improvements thereon and customary security deposits with respect
thereto (it being understood that individual financings of the type permitted under Section 6.01(m) provided
by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(o)
Liens securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets
or on the Capital Stock and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends
to or covers any other assets (other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements
thereon, it being understood that individual financings of the type permitted under Section 6.01(m)
provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) or (y)
was created in contemplation of the applicable acquisition of assets or Capital Stock;
(p)
(i)(i) Liens that are contractual rights of set-off or netting relating to (A)
the establishment of depositary relations with banks or other financial institutions not granted in connection with the issuance of Indebtedness,
(B) pooled deposit or sweep accounts of the Parent Borrower and/or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Parent Borrower
and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered
into with customers of the Parent Borrower and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity
trading or other brokerage accounts incurred in the ordinary course of business, (ii) Liens
encumbering reasonable customary initial deposits and margin deposits, (iii)
bankers Liens and rights and remedies as to Deposit Accounts or similar accounts, (iv)
Liens of a collection bank arising under Section 4-208 or Section 4-210 of the UCC on items in the ordinary course of business, (v)
Liens (including rights of set-off) in favor of banking or other financial institutions arising as a matter of Law or under customary
general terms and conditions encumbering deposits or other funds maintained with a financial institution and that are within the general
parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions and
(vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred
in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms
to secure such Indebtedness pending the application of such proceeds to finance such transaction or on Cash or Cash Equivalents set aside
at the time of the incurrence of such Indebtedness to the extent such Cash or Cash Equivalents prefund the payment of interest or fees
on such Indebtedness and are held in escrow pending application for such purpose;
(q)
Liens on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such
Persons) securing Indebtedness or other obligations of
Restricted Subsidiaries
that are not Loan Parties permitted pursuant to Section 6.01 (or not prohibited under this Agreement);
(r)
Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement
or similar agreements entered into in the ordinary course of business of the Parent Borrower and/or its Restricted Subsidiaries;
(s)
Liens disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material
Real Estate Asset, provided such Liens do not, in the aggregate, materially interfere with the use of such Material Real Estate Asset,
and any replacement, extension or renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall
cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal (and additions
thereto, improvements thereon and the proceeds thereof);
(t)
Liens securing Indebtedness incurred pursuant to Sections 6.01(x) and (z); provided
that, if any such Lien is on Collateral, the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable
Intercreditor Agreement;
(u)
other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not
to exceed the greater of $340,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
provided that, at the election of the Parent Borrower with respect to any such Lien on Collateral, the holders of such Indebtedness or
other obligations (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement (including on a pari passu or
junior lien basis);
(v)
(i)(i) Liens on assets securing 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(h) and (ii) any cash deposits securing any settlement of litigation;
(w)
(i)(i) leases, licenses, subleases, sublicenses or cross-licenses granted to others, (ii) assignments
of IP Rights granted to a customer of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business which do not
secure any Indebtedness or (iii) the rights reserved or vested in any Person
(including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit held by the Parent Borrower or
any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or
to require annual or periodic payments as a condition to the continuance thereof;
(x)
Liens on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section
6.06 arising out of such repurchase transaction;
(y)
Liens securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments
permitted under Sections 6.01(d), (e), (g), (aa)
and (cc);
(z)
Liens arising (i) out of conditional sale, title retention, consignment
or similar arrangements for the sale of any assets or property and bailee arrangements in the ordinary course of business and permitted
by this Agreement or (ii) by operation of law under Article 2
of the UCC (or any similar Requirement of Law of any jurisdiction);
(aa)
Liens (i) in favor of any Loan Party and/or (ii)
granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i)
and (ii), securing intercompany Indebtedness permitted under Section 6.01
or Section 6.09;
(bb)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc)
Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations
in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or goods;
(dd)
Liens securing (i) obligations under Hedge Agreements in connection with
any Derivative Transaction of the type described in Section 6.01(s), (ii)
obligations of the type described in Section 6.01(f) and/or (iii)
obligations of the type described in Section 6.01(r), which Liens (A)
in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the Collateral
so long as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B)
in the case of clause (iii) (to the extent not secured as provided in clause (A)), may consist
of pledges of Cash collateral in an amount not to exceed the greater of $85,000,000 and 25% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period;
(ee)
(i)(i) Liens on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations
of, such Persons and (ii) customary rights of first refusal and tag, drag and
similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;
(ff)
Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg)
Liens permitted to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement (including
liens on cash or Cash Equivalents backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings
or renewals thereof, so long as no such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise
permitted by this Section 6.02;
(hh)
Liens on assets not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed
the greater of $85,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so
long as the Obligations in respect of the Credit Facilities are secured on a ratable basis (without regard to the control of remedies)
with or prior to the obligations so secured for so long as such obligations are so secured (which Liens, in the case of this clause
(y), shall be subject to an Acceptable Intercreditor Agreement);
(ii)
Liens on Receivables Facility Assets incurred in connection with a Receivables Facility;
(jj)
undetermined or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been
filed or exercised, or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in good
faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person
in accordance with GAAP;
(kk)
with respect to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens
and privileges extend only to the assets or Capital Stock of such Foreign Subsidiary;
(ll)
ground leases or subleases in respect of real property on which facilities owned or leased by the Parent Borrower or any of its
Restricted Subsidiaries are located;
(mm)
Liens that are customary in the business of the Parent Borrower and its Restricted Subsidiaries and that do not secure debt for
borrowed money;
(nn)
security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo)
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;
(pp)
Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar
provision of any applicable law;
(qq)
Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Parent Borrower or any
Restricted Subsidiary in the ordinary course of business;
(rr)
Liens granted pursuant to a security agreement between the Parent Borrower or any Restricted Subsidiary and a licensee of IP Rights
to secure the damages, if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy,
reorganization or similar proceeding with respect to the Parent Borrower or such Restricted Subsidiary;
(ss)
Liens arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the
Transactions, any Permitted Acquisition or other similar Investment;
(tt)
Liens arising under the Carlyle Sale/Leaseback Documents, the Carlyle Sale/Leaseback 2014 Documents or the Excluded Property Transaction
Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Parent Borrower and/or one or more
of its Subsidiaries, and letters of credit to secure the obligations of the Parent Borrower or any applicable Restricted Subsidiary thereunder;
(uu)
Liens on (x) any Excluded Property or (y) any other real property acquired after the Closing Date and not subject (or required
to be subject) to a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to
this clause (y) does not exceed $50,000,000; and
(vv)
Liens deemed to exist in connection with repurchase obligations permitted to be incurred pursuant to Section
6.01(nn).
Section
6.03. No Further
Negative Pledges. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are Loan Parties to,
enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties (other
than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations,
except with respect to:
(a)
restrictions relating to any asset (or all of the assets) of and/or the Capital Stock of the Parent Borrower and/or any Restricted
Subsidiary which are imposed pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license
of such asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b)
restrictions contained in the Loan Documents, any then extant Second Lien Facility, any Incremental Equivalent Debt, any Receivables
Facility (limited to the assets securing the Indebtedness arising thereunder) or any Additional Letter of Credit Facility (limited to
the assets securing the Indebtedness arising thereunder) (and clause (p) of Section 6.01
to the extent relating to any extension, refinancing, refunding or replacement of any of the foregoing);
(c)
restrictions contained in any documentation governing any other Indebtedness permitted by Section 6.01
to the extent such restrictions (1)(x) are, taken as a whole, in the good-faith judgment of the Parent Borrower, not materially more
restrictive as concerning the Parent Borrower or any Restricted Subsidiary than customary market terms for Indebtedness of such type
or (y) are not materially more restrictive, taken as a whole, than the restrictions contained in this Agreement (as determined by the
Parent Borrower in good faith) and (2) will not materially impair the Parent Borrower’s obligation or ability to make any payments
required hereunder (as determined by the Parent Borrower in good faith);
(d)
restrictions by reason of customary provisions restricting assignments, subletting or other transfers (including the granting
of any Lien) contained in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary
course of business (provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset
sale or other agreements and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases,
licenses, sublicenses, asset sale or other agreements, as the case may be);
(e)
Permitted Liens and restrictions in the agreements relating thereto that limit the right of the Parent Borrower or any of its
Restricted Subsidiaries to Dispose of or encumber the assets subject to such Liens;
(f)
provisions limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back
agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject
of such agreements (or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent
with respect thereto));
(g)
any encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long
as such encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person
or Persons) and/or property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created
solely in connection with or in anticipation of such acquisition;
(h)
restrictions imposed by customary provisions in partnership agreements, limited liability company organizational governance documents,
joint venture agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant
partnership, limited liability company, joint venture or any similar Person (or any “shell company” parent with respect thereto);
(i)
restrictions on Cash or other deposits permitted under Section 6.02 and/or 6.06
and any net worth or similar requirements, including such restrictions or requirements imposed by Persons
under contracts
entered into in the ordinary course of business or for whose benefit such Cash or other deposits or net worth or similar requirements
exist;
(j)
restrictions (i) set forth in documents which exist on the Amendment No.
8 Effective Date or (ii)
which are contemplated as of the Amendment No. 8 Effective Date and, in the case of this clause (ii), as set forth
on Schedule 6.03;
(k)
restrictions contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder;
(l)
restrictions in Indebtedness permitted by Section 6.01 that is secured by a Permitted Lien if the
relevant restriction applies only to the Persons obligated under such Indebtedness and its Restricted Subsidiaries or the assets intended
to secure such Indebtedness;
(m)
provisions restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by
the Parent Borrower and its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into
in the ordinary course of business (in which case such restriction shall relate only to such IP Rights);
(n)
restrictions arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession
or permit issued or granted by a Governmental Authority;
(o)
restrictions with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason
of an agreement that such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted
Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary
and any such restriction does not extend to any assets or property of the Parent Borrower or any other Restricted Subsidiary other than
the assets and property of such Subsidiary;
(p)
customary restrictions imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q)
restrictions contained in the Carlyle Sale/Leaseback Documents or the Carlyle Sale/Leaseback 2014 Documents as in effect on the
date of this Agreement, and restrictions contained in any Excluded Property Transaction Documents and/or any documents governing any
Sale and Lease-Back Transactions; and
(r)
other restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing of the contracts, instruments or obligations referred to in clauses (a) through (q)
above; provided that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or
refinancing is, in the good faith judgment of the Parent Borrower, more restrictive with respect to such encumbrances and other restrictions,
taken as a whole, than those in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
Section
6.04. Restricted
Payments; Certain Payments of Indebtedness.
(a)
The Parent Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i)
the Parent Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
(A)
to pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary
salary, bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any
Parent Company), in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable
and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent
Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance
of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent
Company other than the Parent Borrower and/or its subsidiaries), the Parent Borrower and/or its subsidiaries;
(B)
to pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence
of such Parent Company;
(C)
to pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers
of the Parent Borrower or its Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise))
payable to Permitted Payees, as well as applicable employment, social security or similar taxes in connection therewith, to the extent
such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Parent Borrower
and/or its subsidiaries, in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D)
to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company
(but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of
any subsidiary of any Parent Company other than the Parent Borrower and/or its subsidiaries), the Parent Borrower and its subsidiaries;
(E)
for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt,
the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than
the Parent Borrower and/or its subsidiaries), the Parent Borrower and its subsidiaries;
(F)
to pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions
permitted or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction
and exit fees of any Parent Company of the Parent Borrower) and expenses and indemnities of any trustee, agent, arranger, underwriter
or similar role and (y) Public Company Costs; and
(G)
to finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section
6.06 (provided that (x) any Restricted
Payment
under this clause (a)(i)(G) shall be made substantially concurrently with the closing or consummation of
such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation thereof or at future times as may
be scheduled at the time of such closing or consummation to be made thereafter in connection therewith, cause (I) all property acquired
to be contributed to the Parent Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation
of the Person formed or acquired into the Parent Borrower or one or more of its Restricted Subsidiaries, in order to consummate such
Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the
Parent Borrower or the relevant Restricted Subsidiary);
(ii)
the Parent Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement
or other acquisition or retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A)
in accordance with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount
of all Cash payments made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant
to sub-clause (D) of this clause (ii) below, (1) does not exceed the greater of $68,000,000 and 20% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period in any Fiscal Year, which, if not used in any Fiscal Year,
may be carried forward to subsequent Fiscal Years (until so applied)) minus (2) any utilization of the Available RP Capacity Amount in
reliance on unused capacity under clause (D) below; plus
(B)
with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Parent Borrower
or any Parent Company (to the extent such proceeds are contributed to the Parent Borrower or any Restricted Subsidiary in respect of
Qualified Capital Stock issued by the Parent Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or
an Available Excluded Contribution Amount); plus
(C)
with the net proceeds of any key-man life insurance policies; plus
(D)
with Cash and Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant
to sub-clause (A) of this clause (ii) in respect of promissory notes issued pursuant to Section
6.01(o), (1) the greater of $68,000,000 and 20% of Consolidated Adjusted EBITDA
as of the last day of the most recently ended Test Period in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward
to subsequent Fiscal Years (until so applied) minus (2) any utilization of the
Available RP Capacity Amount in reliance on unused capacity under the immediately preceding clause (1); plus
(E)
with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of
Capital Stock of the Parent Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation
plan;
(iii)
the Parent Borrower may make additional Restricted Payments in an amount not to exceed (A)
the portion, if any, of the Available Amount on such date that the Parent Borrower elects to apply to this clause (iii)(A)
plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Parent Borrower elects to apply to this clause (iii)(B)
(plus, without duplication of amounts referred to in this clause (B), in an amount equal to the Net
Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets was
financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application
thereof under Sections 6.04(b)(vi) or 6.06(r));
(iv)
the Parent Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments
in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into
or exchangeable for Capital Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof)
and, mergers, consolidations, amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder
and/or (B) honor any conversion request by a holder of Convertible Indebtedness by payment of cash and/or delivery of Capital Stock,
make any cash payments in lieu of fractional shares in connection with any conversion of Convertible Indebtedness and otherwise make
payments on Convertible Indebtedness in accordance with its terms (including, without limitation, making payments of interest and principal
thereon, making payments due upon required repurchase thereof and/or making payments upon redemption thereof), or, in the case of each
of sub-clauses (A) and (B) above, make Restricted Payments to any Parent Company to enable such Parent Company to make the payments and/or
deliveries described in such sub-clauses (A) and (B), and (ii) consisting of (A)
payments made or expected to be made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B)
repurchases of Capital Stock in consideration of the payments described in sub clause (A) above, including
demand repurchases in connection with the exercise of stock options and the issuance of restricted stock units or similar stock based
awards;
(v)
the Parent Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection
with), or make Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or
make provisions for withholdings in connection with), the exercise of warrants, options or other securities convertible into or exchangeable
for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such
warrants, options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi)
the Parent Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the
consummation of the Transactions and on or about the Amendment No. 1 Effective Date, solely to effect the consummation of the Amendment
No. 1 Transactions, (ii) on and after the Closing Date, to satisfy any payment obligations owing, or as otherwise required, under the
Acquisition Agreement (including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each
case, with respect to the Transactions, (iii) to satisfy obligations to direct or indirect holders of Capital Stock of the Parent Borrower
(immediately prior to giving effect to the Transactions) in connection with, or as a result of, any working capital and/or purchase price
adjustments, in each case, with respect to the Transactions and (iv) to satisfy any settlement of claims or actions in connection
with the Transactions or to satisfy indemnity or other similar obligations in connection with the Transactions;
(vii)
the Parent Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments with
respect to any Capital Stock in an amount not to exceed (A) the greater of (x)
an amount equal to 7.00% per annum of the net Cash proceeds received by or contributed to the Parent Borrower in connection with the
merger of Isos Acquisition Corporation and Bowlero Corp. on December 15, 2021 and the other transactions consummated in connection therewith
and (y) an amount equal to 7.00% per annum of the Market Capitalization of the Parent Borrower (or its direct or indirect Parent Company,
as applicable) and its subsidiaries minus (B) any utilization of the Available
RP Capacity Amount in reliance on unused capacity under immediately preceding clause (A);
(viii)
the Parent Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any
(A) Capital Stock (“Treasury Capital Stock”) of the Parent
Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company,
in the case of each of subclauses (A) and (B), in exchange for, or out
of the proceeds of the substantially concurrent sale (other than to the Parent Borrower and/or any Restricted Subsidiary) of, Qualified
Capital Stock of the Parent Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Parent
Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii)
declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than
to the Parent Borrower or a Restricted Subsidiary) of any Refunding Capital Stock;
(ix)
to the extent constituting a Restricted Payment, the Parent Borrower may consummate any transaction permitted by Section
5.19 (other than Section 5.19(d)), Section 6.06 (other than
Sections 6.06(j) and (t)) and Section 6.07
(other than Section 6.07(g));
(x)
the Parent Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A)
the greater of $85,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B)
any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause (A);
(xi)
the Parent Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the
declaration thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration
or notice, the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the
provisions of this Section 6.04(a);
(xii)
the Parent Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii)
the Parent Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section
1.04(e), (i) the Total Leverage Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall
exist no Event of Default hereunder or shall result therefrom;
(xiv)
the Parent Borrower may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the
Parent Borrower and/or any Restricted Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xv)
(A) for any taxable period for which the Parent Borrower and/or any of
its Subsidiaries are members of a consolidated, combined or similar income tax group for U.S. federal and/or applicable state or local
income tax purposes of which a direct or indirect parent of the Parent Borrower is the common parent (a “Tax Group”),
or for which the Parent Borrower is a disregarded entity for U.S. federal income tax purposes wholly-owned by a corporate parent (a “Corporate
Parent”), the Parent Borrower and each of its Subsidiaries may make Restricted Payments the proceeds of which shall be used
by such common parent to pay the portion of any consolidated, combined or similar U.S. federal, state or local income Taxes of such Tax
Group, or by the Corporate Parent to pay the portion of the U.S. federal, state or local income Taxes of such Corporate Parent, or any
franchise taxes imposed in lieu thereof, for such taxable period that are attributable to the income of the Parent Borrower and/or its
Subsidiaries, provided that such amount shall not be greater than the amount of such U.S. federal, state or local income taxes that would
be paid (for such taxable period) by the Parent Borrower and its Subsidiaries if the Parent Borrower and/or such Subsidiaries had been
a stand-alone corporate taxpayer (or stand-alone group of corporate taxpayers filing on a consolidated, combined or similar basis) for
all taxable years ending after the Closing Date (taking into account any net operating loss carryforwards attributable to the Parent
Borrower and its Subsidiaries, as the case may be) and (B) without duplication
of Restricted Payments made under Section 6.04(a)(xv)(A), for any taxable period for which the Parent
Borrower is treated as a partnership for U.S. federal and/or applicable state or local income tax purposes, the Parent Borrower may make
Restricted Payments to its equity owners at the times and in the amounts necessary to enable such owners (and their direct or indirect
owners) to pay their Tax obligations attributable to their direct or indirect ownership interests in the Parent Borrower in an aggregate
amount equal to the product of (1) 50% (or such higher tax rate as shall be applicable to a resident of New York City or California that
indirectly owns an interest in the Parent Borrower, taking into account the character of the taxable income in question and the deductibility
of state and local income taxes for U.S. federal income tax purposes) and (2) the taxable income of the Parent Borrower for such taxable
year, less any cumulative taxable losses from prior taxable years to the extent that such losses are of a character (ordinary or capital)
that would permit such losses to be deducted by the direct or indirect owners of the Parent Borrower against the current taxable income
of the Parent Borrower allocable to such owners and have not previously been taken into account in determining tax distributions;
(xvi)
the Parent Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization;
(xvii)
the Parent Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party
or any Restricted Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries,
provided that such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries);
in each case, other than Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that
any such Capital Stock or debt that represents an Investment by the Parent Borrower or any Restricted Subsidiary shall be deemed to continue
to charge (as utilization) the respective clause under Section 6.06 pursuant to which such Investment
was made;
(xviii)
the Parent Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or
as a result of, the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential)
in respect thereof), pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies
with Section 6.07;
(xix)
the Parent Borrower may make a Restricted Payment in respect of payments made for the benefit of the Parent Borrower or any Restricted
Subsidiary to the extent such payments could have been made by the Parent Borrower or any Restricted Subsidiary because such payments
(A) would not otherwise be Restricted Payments and (B) would be permitted by Section 6.09;
(xx)
the Parent Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to
any Permitted Payee and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection
with the exercise of stock options or the issuance of restricted stock units or similar stock based awards; and
(xxi)
the Parent Borrower may make a Restricted Payment in respect of any payments or deliveries in connection with (a) a Permitted
Bond Hedge Transaction or (b) Permitted Warrant Transaction or Packaged Rights (i) by delivery of shares of the Parent Borrower’s
Qualified Capital Stock or (ii) otherwise, to the extent of a payment or delivery received from a Permitted Bond Hedge Transaction (whether
such payment or delivery on the Permitted Warrant Transaction is effected by netting, set-off or otherwise).
(b)
The Parent Borrower shall not, nor shall it permit any Restricted Subsidiary that is a Loan Party to, make any voluntary prepayment
in Cash on or in respect of principal of or interest on any Restricted Debt, including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Debt more than one year prior to
the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i)
any refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted
Debt made by exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01
and/or any extension, refinancing, refunding or replacing Indebtedness permitted by Section 6.01(x);
(ii)
payments as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up
payment;
(iii)
payments of regularly scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when
due (other than payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv)
additional Restricted Debt Payments in an aggregate amount not to exceed (A)
(1) the greater of (x) $85,000,000 and (y) 25% of Consolidated Adjusted EBITDA
as of the last day of the most recently ended Test Period minus (2) any
utilization of the Available RDP Capacity Amount in reliance on unused capacity under immediately preceding clause (A)(1)
plus (B) the Available RP Capacity Amount;
(v)
(A)(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Parent Borrower
and/or any Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Parent Borrower or any
Restricted Subsidiary, (B) Restricted Debt Payments as a result of the conversion
of all or any portion of any Restricted Debt into Qualified Capital Stock of the Parent Borrower and/or any Restricted Subsidiary or
Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind
interest with respect to any Restricted Debt that is permitted under Section 6.01;
(vi)
Restricted Debt Payments in an aggregate amount not to exceed (A) the
portion, if any, of the Available Amount on such date that the Parent Borrower elects to apply to this clause (vi)(A)
plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Parent Borrower elects to apply to this clause (vi)(B)
(plus, without duplication of amounts previously referred to in this clause (B), in an amount equal
to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or
assets was financed solely with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount,
less any application thereof under Sections 6.04(a)(iii) or 6.06(r));
(vii)
additional Restricted Debt Payments so long as, as measured at the time provided for in Section
1.04(e), (i) the Total Leverage Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event
of Default under Section 7.01(a) or, with respect to the Parent Borrower, Sections 7.01(f)
or (g) or shall result therefrom;
(viii)
Restricted Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section
6.01(n), provided that any such Restricted Debt Payment shall be deemed an Investment and shall only be permitted to the extent there
exists the ability to make such Investment pursuant to Section 6.06 at such time; and
(ix)
Restricted Debt Payments made on or substantially concurrently with the Amendment No. 1 Effective Date to repay amounts outstanding
under the Second Lien Facility (and related fees and expenses).
Section
6.05. [Reserved].
Section
6.06. Investments.
The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make any Investment in any other Person except:
(a)
Investments in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time made;
(b)
(i)(i) Investments existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof
so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise
permitted by this Section 6.06 and (ii) Investments
made after the Closing Date among Holdings, the Parent Borrower and/or one or more Restricted Subsidiaries or in any Person that will,
upon such Investment, become a Restricted Subsidiary;
(c)
Investments (i) constituting deposits, prepayments and/or other credits
to suppliers or other trade counterparties, (ii) made in connection with obtaining,
maintaining or renewing client and customer contracts and/or (iii) in the
form of advances made to distributors, suppliers, licensors and licensees, in each case, in the ordinary course of business or, in the
case of clause (iii), to the extent necessary to maintain the ordinary course of supplies to the Parent Borrower
or any Restricted Subsidiary;
(d)
Investments in (i) any Unrestricted Subsidiary (including any Joint Venture
that is an Unrestricted Subsidiary) in an aggregate outstanding amount not to exceed the greater of $85,000,000 and 25% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period and (ii)
any Similar Business (including any Joint Venture engaged in a Similar Business) in an aggregate outstanding amount not to exceed the
greater of $170,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; provided that
if any Investment pursuant to this
clause (d)(ii)
is made in any Person that is not a Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted
Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii)
above and shall cease to have been made under this clause (d);
(e)
(i)(i) Permitted Acquisitions and (ii) Investments in Restricted Subsidiaries
that are not Loan Parties in amounts required to permit such Restricted Subsidiaries to consummate Permitted Acquisitions;
(f)
(i)(i) Investments existing on, or contractually committed to or contemplated as of, the Amendment No. 8 Effective Date and, with
respect to any such Investment in excess of $1,000,000, described on Schedule 6.06 and (ii)
any modification, replacement, renewal or extension of any Investment described in clause (i) above so long as no
such modification, renewal or extension thereof increases the amount of such Investment except by the terms thereof or as otherwise permitted
by this Section 6.06;
(g)
Investments received in lieu of Cash in connection with any Disposition permitted by Section 6.07
or any other disposition of assets not constituting a Disposition;
(h)
loans or advances to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s purchase
of Capital Stock of any Parent Company, either (i) in an aggregate principal amount
not to exceed the greater of $17,000,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
at any one time outstanding, (ii) so long as the proceeds of such loan or advance
are substantially contemporaneously contributed to the Parent Borrower for the purchase of such Capital Stock or (iii)
so long as no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i)
Investments consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from
the grant of trade credit in the ordinary course of business;
(j)
Investments consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including
guarantees thereof) (other than Indebtedness permitted under Sections 6.01(b) and (h)),
Permitted Liens, Restricted Payments permitted under Section 6.04 (other than Section
6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations,
liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section
6.07(a)(i) (if made in reliance on subclause (ii)(y) of the proviso thereto), Section
6.07(b) (if made in reliance on clause (ii) of the proviso thereto), Section 6.07(c)(ii)
(if made in reliance on clause (B) therein) and Section 6.07(g));
(k)
Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements
with customers, vendors, suppliers, licensors, sublicensors, licensees, sublicensees, leasors, leasees, subleasors and subleasees;
(l)
Investments (including debt obligations and Capital Stock) received (i)
in connection with the bankruptcy, work-out, reorganization or recapitalization of any Person, (ii)
in settlement or compromise of delinquent obligations of, or other disputes with or judgments against, customers, trade-creditors, suppliers,
licensees and other account debtors arising in the ordinary course of business, including pursuant to any plan of reorganization or similar
arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier or licensee, (iii)
in satisfaction of judgments against other Persons, (iv) as a result of foreclosure
with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (v)
in settlement, compromise or resolution of litigation, arbitration or other disputes;
(m)
loans and advances of payroll payments or other compensation to present or former employees, directors, members of management,
officers, managers or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided
to such Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership
or operations of any subsidiary of any Parent Company other than the Parent Borrower and/or its subsidiaries)), the Parent Borrower and/or
any subsidiary in the ordinary course of business;
(n)
Investments to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other
than Disqualified Capital Stock) of the Parent Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a
Change of Control;
(o)
(i)(i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into
or consolidated or amalgamated with, the Parent Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of
an Investment otherwise permitted by this Section 6.06 to the extent that such Investments were not made
in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of
the relevant acquisition, merger, amalgamation or consolidation and (ii) any
modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section
6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except
as otherwise permitted by this Section 6.06;
(p)
Investments made in connection with the Transactions and any Investments held by the Target or its Restricted Subsidiaries on
the Closing Date and permitted to remain (or not prohibited from remaining) outstanding after the Closing Date pursuant to the terms
of the Acquisition Agreement;
(q)
Investments made after the Closing Date by the Parent Borrower and/or any of its Restricted Subsidiaries in an aggregate amount
at any time outstanding not to exceed:
(i)
the greater of $255,000,000 and 75% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period,
plus
(ii)
the Available RP Capacity Amount plus the Available RDP Capacity Amount, plus
(iii)
in the event that (A) the Parent Borrower or any of its Restricted Subsidiaries
makes any Investment after the Closing Date in any Person that is not a Restricted Subsidiary and (B)
such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the fair market value of such Investment as of the
date on which such Person becomes a Restricted Subsidiary;
(r)
Investments made after the Closing Date by the Parent Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding
amount not to exceed (i) the portion, if any, of the Available Amount on such
date that the Parent Borrower elects to apply to this clause (r)(i) plus (ii)
the portion, if any, of the Available Excluded Contribution Amount on such date that the Parent Borrower elects to apply to this clause
(r)(ii) (plus, without duplication of amounts referred to in this clause (ii),
in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of
such property or assets was financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution
Amount, less any application thereof under Sections 6.04(a)(iii) or 6.04(b)(iv));
(s)
(i) Guarantees of leases or subleases (in each case other than Capital
Leases) or of other obligations not constituting Indebtedness, (ii) Guarantees
of the lease obligations of suppliers, customers, franchisees and licensees of the Parent Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products
to be purchased by the Parent Borrower or any Restricted Subsidiary;
(t)
(i) Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted
under Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted
Payment shall reduce availability under the applicable Restricted Payment basket under Section 6.04(a) and
(ii) Investments consisting of loans and advances to any Parent Company in connection with the reimbursement of expenses incurred on
behalf of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business;
(u)
Investments made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary
from an Investment made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other
than Investments made pursuant to clause (ii) of Section 6.06(e));
(v)
Investments in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization,
and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents); provided that, after giving effect
to any such reorganization, restructuring and/or related activity, the security interest of the Administrative Agent in the Collateral,
taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior
to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a result of such reorganization,
restructuring or tax planning activities;
(w)
Investments arising under or in connection with any Derivative Transaction of the type permitted under Section
6.01(s);
(x)
Investments made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture
or (iii) in any Restricted Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate
outstanding amount under this clause (x) not to exceed the greater of $85,000,000 and 25% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period; provided that if any Investment pursuant to this clause (x)
is made in any Person that is not a Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted
Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii)
above and shall cease to have been made under this clause (x);
(y)
Investments made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties
set forth in joint venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing
Date in the ordinary course of business;
(z)
unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain
unfunded under applicable Requirements of Law;
(aa)
Investments in Holdings, the Parent Borrower and/or any subsidiary in connection with intercompany cash management arrangements
and related activities in the ordinary course of business;
(bb)
Investments made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc)
any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a
Restricted Subsidiary (but for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as
the relevant Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd)
additional Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro
Forma Basis, the Total Leverage Ratio does not exceed 4.25:1.00;
(ee)
Investments consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar
arrangements with other Persons;
(ff)
Investments in or relating to any Receivables Subsidiary that, in the good faith determination of the Parent Borrower, are necessary
or advisable to effect a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in accounts
permitted or required by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg)
the conversion to Qualified Capital Stock of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted
by Section 6.01;
(hh)
Restricted Subsidiaries of the Parent Borrower may be established or created (including pursuant to a Delaware LLC Division) if
the Parent Borrower and such Restricted Subsidiary comply with the requirements of Section 5.12, if applicable;
provided that, in each case, to the extent such new Restricted Subsidiary is created solely for the purpose of consummating a
transaction pursuant to an acquisition or other Investment permitted by this Section 6.06, and such new Restricted
Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment consideration contributed to it contemporaneously
with the closing of such transaction, such new Restricted Subsidiary shall not be required to take the actions set forth in Section
5.12 until the respective acquisition is consummated (at which time the surviving entity of the respective transaction shall be required
to so comply in accordance with the provisions thereof);
(ii)
contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors,
partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors
in the case of a bankruptcy of the Parent Borrower or any of its Restricted Subsidiaries;
(jj)
Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long
as such Investment is part of a series of simultaneous Investments by the Parent Borrower and the Restricted Subsidiaries in other Restricted
Subsidiaries that result in the proceeds of the intercompany Investment being invested in one or more Loan Parties;
(kk)
Investments consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or Investments
otherwise permitted under this Section 6.06 and any other pledges or deposits permitted by Section
6.02;
(ll)
Term Loans repurchased by Holdings, the Parent Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation
in accordance with this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans
repurchased by the Parent Borrower or a
Restricted Subsidiary
pursuant to and subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm)
Guarantee obligations of the Parent Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar
obligations issued, made or incurred for the benefit of any Restricted Subsidiary of the Parent Borrower to the extent required by law
or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United
States;
(nn)
purchases and acquisitions of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of
business;
(oo)
Investments pursuant to, in connection with, or made with the proceeds of any Excluded Property Transaction; and
(pp)
Permitted Bond Hedge Transactions.
Notwithstanding
anything to the contrary herein, any Investment in the form of a transfer of title (or transfer of similar effect) of Material Intellectual
Property by Loan Parties to Unrestricted Subsidiaries shall not be permitted; provided that notwithstanding the foregoing, for
the avoidance of doubt, the above references to a transfer of title (or transfer of similar effect) with respect to Material Intellectual
Property shall not be deemed or interpreted to include a transfer of Material Intellectual Property in the form of any license or sublicense
agreement in the ordinary course of business or entered into for legitimate business purposes (as determined by the Parent Borrower in
good faith) that is only exclusive with respect to a particular type or field (or types or fields) of usage or a certain territory or
group of territories.
Section
6.07. Fundamental
Changes; Disposition of Assets. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into
any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation or
dissolution) (including, in each case, pursuant to a Delaware LLC Division), or make any Disposition outside of the ordinary course of
business of assets having a fair market value in excess of (x) with respect to any single transaction or series of related transactions,
the greater of $17,000,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and (y) with
respect to all other Dispositions not excluded pursuant to clause (x), in excess of the greater of $34,000,000 and 10% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period in any Fiscal Year, except:
(a)
any Borrower or Restricted Subsidiary may be merged, consolidated or amalgamated with or into (including pursuant to any successive
mergers, consolidations or amalgamations of entities) any other Person (the continuing or surviving person after giving effect to such
transaction or successive transactions, the “Surviving Person”); provided that (i)
in the case of any such merger, consolidation or amalgamation by, with or into a Borrower, either (A)
a Borrower (or, in the case of a merger, consolidation or amalgamation by, with or into the Parent Borrower, the Parent Borrower) shall
be the Surviving Person or (B) if the Surviving Person is not a Borrower (or,
in the case of a merger, consolidation or amalgamation by, with or into the Parent, is not the Parent Borrower), either (1) (x) the Surviving
Person shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Surviving
Person shall expressly assume the Obligations of such Borrower or the Parent Borrower, as applicable, in a manner reasonably satisfactory
to the Administrative Agent (any Surviving Person that assumes the Obligations of the Parent Borrower, a “Successor Parent Borrower”,
and any Surviving Person that assumes the Obligations of a Borrower other than the Parent Borrower, a “Successor Borrower”)
and (z) except as the Administrative Agent may otherwise agree, each Subsidiary
Guarantor, unless
it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with
respect to its obligations under the Loan Guaranty and the other Loan Documents or (2) in the case of a merger, consolidation or amalgamation
of an Additional Borrower, such Additional Borrower resigns as a Borrower prior to or substantially concurrently with the consummation
of such merger, consolidation or amalgamation; it being understood and agreed that if the foregoing conditions are satisfied, the Successor
Borrower or Successor Parent Borrower, as applicable, will succeed to, and be substituted for, the applicable Borrower or the Parent
Borrower, as the case may be, under this Agreement and the other Loan Documents and (ii)
in the case of any such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, either (x) a Borrower or a Subsidiary
Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations
of the Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (y) the relevant transaction shall be
treated as an Investment and otherwise be made in compliance with Section 6.06;
(b)
Dispositions (including of Capital Stock) among the Parent Borrower and/or any Restricted Subsidiary (upon voluntary liquidation
or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i)
for fair market value (as determined by such Person in good faith) or (ii) treated
as an Investment and otherwise be made in compliance with Section 6.06 (other than in reliance on clause
(j) thereof);
(c)
(i)(i) the liquidation or dissolution of any Restricted Subsidiary if the Parent Borrower determines in good faith that such liquidation
or dissolution is in the best interests of the Parent Borrower, is not materially disadvantageous to the Lenders, and the Parent Borrower
or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that
in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary
that is not a Loan Party, such distribution shall be treated as an Investment and shall otherwise be made in compliance with Section
6.06 (other than in reliance on clause (j) thereof); (ii)
any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A)
any Disposition otherwise permitted under this Section 6.07 (other than clause (a),
clause (b) or this clause (c)) or (B)
any Investment permitted under Section 6.06; and (iii)
the Parent Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion
does not adversely affect the value of the Loan Guaranty or the Collateral, taken as a whole;
(d)
(x) Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including
on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e)
Dispositions of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Parent
Borrower, is (A) no longer useful in its business (or in the business of any Restricted
Subsidiary of the Parent Borrower) or (B) otherwise economically impracticable
or not commercially reasonable to maintain;
(f)
Dispositions of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original
Investment was made;
(g)
Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments
permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens,
Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))
and Sale and Lease-Back Transactions permitted by Section 6.08;
(h)
Dispositions for fair market value; provided that with respect to (1)
any single Disposition transaction with respect to assets having a fair market value in excess of the greater of $34,000,000 and 10%
of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (2)
any other Disposition transactions with respect to assets having a fair market value in excess of the greater of $51,000,000 and 15%
of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all such transactions on an aggregate
basis in any Fiscal Year, at least 75% of the consideration for such Disposition, shall consist of Cash or Cash Equivalents (provided
that for purposes of the 75% Cash consideration requirement, (v) the amount of any Indebtedness or other liabilities (other than
Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Parent Borrower or any Restricted
Subsidiary) of the Parent Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet (or in the
notes thereto), or if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would
have been shown on such balance sheet or in the notes thereto, as determined in good faith by the Parent Borrower) that are (i) assumed
by the transferee of any such assets and for which the Parent Borrower and/or its applicable Restricted Subsidiary have been validly
released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection with such Disposition, (w) the
amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (x)
any Securities or other obligations or assets received by the Parent Borrower or any Restricted Subsidiary from such transferee (including
earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to
be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing
of the applicable Disposition and (y) any Designated Non-Cash Consideration received 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 (y) and clause
(C)(z) of the proviso to Section 6.08 that is at that time outstanding, not in excess of the greater
of $170,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case shall
be deemed to be Cash); provided, further, that the Net Proceeds of such Disposition shall be applied and/or reinvested
as (and to the extent) required by Section 2.11(b)(ii);
(i)
to the extent that (i) the relevant property is exchanged for credit against
the purchase price of similar replacement property or (ii) the proceeds of the
relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j)
Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint
venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k)
Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness
thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l)
Dispositions and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the
provision of software under any open source license), the Dispositions or terminations of which (i) do not materially interfere with
the business of the Parent Borrower and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any product
line or (iii) are made in the ordinary course of business;
(m)
(i)(i) any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition
of improvements made to leased real property resulting therefrom), (ii) any
expiration of any option agreement in respect of real or personal property and (iii)
any
surrender or waiver
of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary
course of business;
(n)
Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings
(including in lieu thereof or any similar proceeding);
(o)
Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property)
with respect to facilities that are temporarily not in use, held for sale or closed;
(p)
the Transactions and any Dispositions in connection with the Transactions;
(q)
Dispositions of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment
permitted hereunder, (x) which Disposition or sale is required to obtain the approval of any anti-trust authority or (y) which, within
120 days of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale
and not for the continued operation of the Parent Borrower or any of its Restricted Subsidiaries or any of their respective businesses;
(r)
exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction),
of property or assets so long as any such exchange or swap is made for fair value (as determined by the Parent Borrower in good faith)
for like property or assets or property, assets or services of greater value or usefulness to the business of the Parent Borrower and
its Restricted Subsidiaries as a whole, as determined in good faith by the Parent Borrower; provided that upon the consummation
of any such exchange or swap by any Loan Party, to the extent the property received does not constitute an Excluded Asset, the Administrative
Agent has a perfected Lien with the same priority as the Lien held on the property or assets so exchanged or swapped;
(s)
Dispositions of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the
greater of $85,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t)
(i)(i) licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or
IP Rights of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business, (ii)
Dispositions, abandonments, cancellations or lapses of IP Rights or issuances or registrations, or applications for issuances or registrations,
of IP Rights, which, in the good faith determination of the Parent Borrower, are not material to the conduct of the business of the Parent
Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use and (iii)
Dispositions of any technology, intellectual property or other IP Rights of the Parent Borrower or any Restricted Subsidiary involving
their customers in the ordinary course of business;
(u)
terminations or unwinds of Derivative Transactions;
(v)
Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w)
Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities
for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Parent Borrower and/or
any Restricted Subsidiary;
(x)
Dispositions made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of
Law;
(y)
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;
(z)
Dispositions constituting any part of a Permitted Reorganization;
(aa)
any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb)
other Dispositions involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $85,000,000
and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any Fiscal
Year may be carried forward to the immediately succeeding Fiscal Year (with such carried over amount deemed first applied in such succeeding
Fiscal Year) or carried back to the immediately preceding Fiscal Year;
(cc)
Dispositions contemplated on the Amendment No. 8 Effective Date and, with respect to each such Disposition of assets having a
fair market value in excess of $1,000,000 described on Schedule 6.07 hereto;
(dd)
Dispositions or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in
connection with any Receivables Facility;
(ee)
the Parent Borrower and the Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers
or employees for purposes of (i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign
nationals, in each case as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect
to Liquor License Subsidiaries;
(ff)
the Parent Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among
the Parent Borrower and its Restricted Subsidiaries or among Restricted Subsidiaries of the Parent Borrower made in the ordinary course
of business;
(gg)
Dispositions in connection with any Permitted Bond Hedge Transaction, any Permitted Warrant Transaction or any Packaged Right;
(hh)
any merger, consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an
Excluded Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii)
the sale, lease, transfer or other Disposition of any Excluded Property by the Parent Borrower or any Restricted Subsidiaries;
(jj)
Dispositions of Bowling Equipment pursuant to the Carlyle Sale/Leaseback Documents and the Carlyle Sale/Leaseback 2014 Documents
by the Parent Borrower or any Restricted Subsidiaries;
(kk)
[reserved];
(ll)
one or more Foreign Asset Dispositions;
(mm)
Disposition of Site #288 known as Starlite Lanes and of any EAP (as defined in the Carlyle Sale/Leaseback Documents and the Carlyle
Sale/Leaseback 2014 Documents);
(nn)
(i) Dispositions in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation
or maintenance of bowling centers and related accessories to Foreign Subsidiaries of the Parent Borrower for use in bowling centers operated
by such Foreign Subsidiaries and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries,
in each case at a price at least equal to the cost to the Parent Borrower or selling subsidiary of such Bowling Equipment, bowling products,
equipment used in the operation or maintenance of bowling centers or related accessories; and
(oo)
(i) Disposition, licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith,
related solely to bowling products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use
certain “AMF” trademarks only in the field of bowling and amusement products, equipment and systems and certain services
related to the foregoing and (iii) the granting of a license concerning the Pinspash trademark.
To
the extent that any Collateral is Disposed of as expressly permitted by this Section
6.07 to any Person other than a Loan Party, such Collateral shall automatically 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) and the Administrative Agent shall
be authorized to take, and shall take, any actions reasonably requested by the Parent Borrower or otherwise deemed appropriate in order
to effect the foregoing.
Notwithstanding
anything to the contrary herein, any Disposition in the form of a transfer of title (or transfer of similar effect) of Material Intellectual
Property by Loan Parties to Unrestricted Subsidiaries shall not be permitted; provided that notwithstanding the foregoing, for
the avoidance of doubt, the above references to a transfer of title (or transfer of similar effect) with respect to Material Intellectual
Property shall not be deemed or interpreted to include a transfer of Material Intellectual Property in the form of any license or sublicense
agreement in the ordinary course of business or entered into for legitimate business purposes (as determined by the Parent Borrower in
good faith) that is only exclusive with respect to a particular type or field (or types or fields) of usage or a certain territory or
group of territories.
Section
6.08. Sale and
Lease-Back Transactions. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly,
become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal
or mixed), whether now owned or hereafter acquired, which the Parent Borrower or the relevant Restricted Subsidiary (a) has
sold or transferred or is to sell or to transfer to any other Person (other than the Parent Borrower or any of its Restricted Subsidiaries)
and (b) intends to use for substantially the same purpose as the property which
has been or is to be sold or transferred by the Parent Borrower or such Restricted Subsidiary to any Person (other than the Parent Borrower
or any of its Restricted Subsidiaries) in connection with such lease (such a transaction described herein, a “Sale and Lease-Back
Transaction”); provided that any Sale and Lease-Back Transaction shall be permitted so long as either (A)
(i) the resulting Indebtedness, if any, is permitted by Section 6.01(m) or Section
6.01(z) or (ii) if the resulting lease obligation is not Indebtedness, the Total Leverage Ratio at the time of entry into such lease
does not exceed the ratio referenced in the Incremental Cap for unsecured Indebtedness or such lease obligation could be incurred pursuant
to Section 6.01(m) if it were Indebtedness, (B) such
Sale and Leaseback Transaction (i) was in existence on the Amendment No. 8 Effective Date or (ii) is a Carlyle Sale/Leaseback, Carlyle
Sale/Leaseback 2014 or Excluded Property Sale/Leaseback Transaction or (C) (1)
such Sale and Lease-Back Transaction is made
in exchange for
cash consideration (provided that for purposes of the foregoing cash consideration requirement, (v) the amount of any Indebtedness
or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Parent
Borrower or any Restricted Subsidiary) of the Parent Borrower or any Restricted Subsidiary (as shown on such Person’s most recent
balance sheet (or in the notes thereto), or, if the incurrence of such Indebtedness or other liability took place after the date of such
balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by the Parent Borrower)
that are (i) assumed by the transferee of any such assets and for which the Parent Borrower and/or its applicable Restricted Subsidiary
have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection with the relevant
Sale and Lease Back Transaction, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired
in connection with such Disposition, (y) any Securities or other obligations or assets received by the Parent Borrower or any Restricted
Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents,
or by their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received)
within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect
of the relevant Sale and Lease Back Transaction having an aggregate fair market value, taken together with all other Designated Non-Cash
Consideration received pursuant to this clause (z) and clause (y) of the proviso to Section 6.07(h)
that is at that time outstanding, not in excess of the greater of $170,000,000 and 50% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period, in each case shall be deemed to be Cash), (2) the Parent Borrower or its applicable
Restricted Subsidiary would otherwise be permitted to enter into, and remain liable under, the applicable underlying lease and (3) the
aggregate fair market value of the assets sold subject to all Sale and Lease-Back Transactions under this clause (C)
shall not exceed the greater of $170,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period.
Section
6.09. [Reserved].
Section
6.10. [Reserved].
Section
6.11. [Reserved].
Section
6.12. Amendments
of or Waivers with Respect to Restricted Debt. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries
to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the effect of
such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests of the
Lenders (in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing
limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect
thereof.
Section
6.13. [Reserved].
Section
6.14. Permitted
Activities of Holdings. Holdings shall not:
(a)
incur any Indebtedness for borrowed money other than (i) the Indebtedness
permitted to be incurred by Holdings under the Loan Documents and any Second Lien Facility or otherwise in connection with the Transactions,
(ii) Guarantees of Indebtedness or other obligations of the Parent Borrower
and/or any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii)
Indebtedness owed to the Parent Borrower or any Restricted Subsidiary otherwise
permitted hereunder
and (iv) any Indebtedness or other obligations arising in respect of its Guarantee of the Carlyle Sale/Leaseback, Carlyle Sale/Leaseback
2014 and any Excluded Property Transaction;
(b)
create or suffer to exist any Lien on any property or asset now owned or hereafter acquired by it other than (i)
the Liens created under the Collateral Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any
Second Lien Facility, in each case, to which it is a party, (ii) any other Lien
created in connection with the Transactions, (iii) Permitted Liens on the
Collateral that are secured on a pari passu or junior basis with the Secured Obligations, so long as such Permitted Liens secure
Guarantees permitted under clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee
is permitted to be secured on the same basis pursuant to Section 6.02 and (iv)
Liens of the type permitted under Section 6.02 (other than in respect of Indebtedness for borrowed money
not referred to in clause (a)(i) of this Section 6.14); or
(c)
engage in any material business activity or own any material assets other than (i) holding the Capital Stock of the Parent Borrower
and, indirectly, any other subsidiary of the Parent Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations
under the Loan Documents and any Second Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees
permitted hereunder; (iii) issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or distribution
on account of, or any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of, any shares
of any class of Capital Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax distributions made pursuant
to Section 6.04(a)(xv) and other customary obligations in the ordinary course (and contesting any Taxes);
(v) preparing reports to Governmental Authorities and to its shareholders; (vi) holding director and shareholder meetings, preparing
organizational records and other organizational activities required to maintain its separate organizational structure or to comply with
applicable Requirements of Law; (vii) effecting any public offering of its Capital Stock; (viii) holding (A) Cash, Cash Equivalents and
other assets received in connection with permitted distributions or dividends received from, or permitted Investments or permitted Dispositions
made by, any of its subsidiaries or permitted contributions to the capital of, or proceeds from the issuance of Capital Stock of, Holdings
pending the application thereof and (B) the proceeds of Indebtedness permitted by Section 6.01; (ix) providing
indemnification for its officers, directors, members of management, employees and advisors or consultants; (x) participating in tax,
accounting and other administrative matters; (xi) making payments of the type permitted under Section 5.19(f)
and the performance of its obligations under any document, agreement and/or Investment contemplated by the Transactions, the Amendment
No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 8 Transactions or otherwise not prohibited under this Agreement;
(xii) complying with applicable Requirements of Law (including with respect to the maintenance of its existence); (xiii) financing activities,
including the issuance of Securities, incurrence of debt, receipt and payment of dividends and distributions, making contributions to
the capital of its Subsidiaries and guaranteeing the obligations of the Parent Borrower and its other Subsidiaries to the extent permitted
hereunder; (xiv) repurchases of Indebtedness through open market purchases and/or Dutch Auctions permitted hereunder; (xv) activities
incidental to Permitted Acquisitions or similar Investments consummated by the Parent Borrower and/or any Restricted Subsidiaries, including
the formation of acquisition vehicle entities and intercompany loans and/or Investments incidental to such Permitted Acquisitions or
similar Investments; (xvi) consummating the Holdings Reorganization Transaction or any Permitted Reorganization; (xvii) the maintenance
of its legal existence (including the ability to incur and pay, as applicable, fees, costs and expenses and taxes related to such maintenance),
(xviii) activities incidental or reasonably related to any of the foregoing and (xvii) any transaction expressly permitted pursuant to
clauses (a), (b) and/or (d) of this Section 6.14;
or
(d)
consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets
to, any Person; provided that, so long as no Event of Default
exists or would
result therefrom, (A) Holdings may consolidate or amalgamate with, or merge with or into, any other Person (other than the Parent Borrower
and any of its subsidiaries) so long as (i) Holdings is the continuing or surviving
Person or (ii) if the Person formed by or surviving any such consolidation,
amalgamation or merger is not Holdings, (x) the successor Person expressly assumes all obligations of Holdings under this Agreement and
the other Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory
to the Administrative Agent and (y) the Parent Borrower delivers a certificate of a Responsible Officer with respect to the satisfaction
of the conditions set forth in clause (x) of this clause (A)(ii) and (B) Holdings may (1) consummate the
Holdings Reorganization Transaction and/or (2) otherwise convey, sell or otherwise transfer all or substantially all of its assets to
any other Person (other than the Parent Borrower and any of its subsidiaries) so long as (x) no Change of Control results therefrom,
(y) the Person acquiring such assets expressly assumes all of the obligations of Holdings under this Agreement and the other Loan Documents
to which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative Agent
and (z) the Parent Borrower delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions under
clause (x) set forth in this clause (B); provided, further, that (1) if the conditions set forth in the preceding
proviso are satisfied, the successor to Holdings will succeed to, and be substituted for, Holdings under this Agreement, (2) it is understood
and agreed that Holdings may convert into another form of entity so long as such conversion does not adversely affect the value of the
Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything to the contrary in this Section
6.14, nothing herein shall preclude Holdings from consummating any Permitted Reorganization.
Section
6.15. Financial
Covenant.
(a)
First Lien Leverage Ratio. On the last day of any Test Period ending on or after the Amendment No. 8 Effective Date on
which the Revolving Facility Test Condition is then satisfied, the Parent Borrower shall not permit the First Lien Leverage Ratio to
be greater than 6.00:1.00.
(b)
Financial Cure. Notwithstanding anything to the contrary in this Agreement (including Article 7),
if the Parent Borrower reasonably expects to fail (or has failed) to comply with Section 6.15(a) above for
any Fiscal Quarter, the Parent Borrower shall have the right (the “Cure Right”) (at any time during such Fiscal Quarter
or thereafter until the date that is 10 Business Days after the date on which financial statements for such Fiscal Quarter are required
to be delivered pursuant to Section 5.01(a) or (b), as applicable) to issue equity
(which shall be common equity, Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable to the
Administrative Agent)) for Cash or otherwise receive Cash contributions in respect of Qualified Capital Stock (the “Cure Amount”),
and thereupon the Parent Borrower’s compliance with Section 6.15(a) shall be recalculated giving effect
to the following pro forma adjustment: Consolidated Adjusted EBITDA shall be increased (notwithstanding the absence of a related addback
in the definition of “Consolidated Adjusted EBITDA”), solely for the purpose of determining compliance with Section
6.15(a) as of the end of such Fiscal Quarter and for applicable subsequent periods that include such Fiscal Quarter, by an amount
equal to the Cure Amount. If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except as expressly
set forth below, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements of Section
6.15(a) would be satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of
the end of the relevant Fiscal Quarter with the same effect as though there had been no failure to comply therewith at such date, and
the applicable breach or default of Section 6.15(a) that had occurred (or would have occurred) shall be deemed
cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (i)
in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters (which may, but are not required to be, consecutive)
in which the Cure Right is not exercised, (ii) during the term of this Agreement,
the Cure Right shall not be exercised more than five times, (iii) the Cure
Amount shall be no greater than the amount required for the purpose of complying with Section 6.15(a) (or
to be in pro forma compliance with any financial covenant with respect to any other Indebtedness that is
being cured), (iv)
upon the Administrative Agent’s receipt of a written notice from the Parent Borrower that the Parent Borrower intends to exercise
the Cure Right (a “Notice of Intent to Cure”), until the 10th Business Day following the date on which financial statements
for the Fiscal Quarter to which such Notice of Intent to Cure relates are required to be delivered pursuant to Section
5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any
Lender shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional Commitments,
and none of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right to foreclose
on or take possession of the Collateral or any other right or remedy under the Loan Documents, in each case solely on the basis of the
relevant Event of Default under Section 6.15(a), (v)
during any Test Period in which any Cure Amount is included in the calculation of Consolidated Adjusted EBITDA as a result of any exercise
of the Cure Right, such Cure Amount shall be (A) counted solely as an increase
to Consolidated Adjusted EBITDA (and not as a reduction of Indebtedness (by netting or otherwise), except to the extent that the proceeds
of such Cure Amount are actually applied to repay Indebtedness, such reduction may be credited in any subsequent Fiscal Quarter) for
the purpose of determining compliance with Section 6.15(a) and (B)
disregarded for all other purposes, including the purpose of determining whether any financial ratio-based condition has been satisfied,
the Applicable Rate or the Commitment Fee Rate or the availability of any carve-out set forth in Article 6
of this Agreement and (vi) no Revolving Lender or Issuing Bank shall be required
to make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Section 6.15(a)
exists during the 10 Business Day period during which the Parent Borrower may exercise a Cure Right above unless and until the Cure
Amount is actually received.
Article
7 EVENTS
OF DEFAULT
Section
7.01. Events
of Default. If any of the following events (each, an “Event of Default”) shall occur:
(a)
Failure To Make Payments When Due. Failure by a Borrower to pay (i)
any installment of principal of any Loan when due, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise; or (ii) any interest on any Loan, any fee
or other non-principal amount due hereunder within five Business Days after the date due.
(b)
Default in Other Agreements. (i) Failure by a Borrower or any of
its Restricted Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items
of Indebtedness (other than Indebtedness referred to in clause (a) above) with an aggregate outstanding principal
amount exceeding the Threshold Amount, in each case beyond the applicable notice period and grace period, if any, provided therefor;
or (ii) breach or default by a Borrower or any of its Restricted Subsidiaries
with respect to any other term of (A) one or more items of Indebtedness with an
aggregate outstanding principal amount exceeding the Threshold Amount or (B) any
loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance of doubt,
with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms of the
relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary), in each
case beyond the applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default is to cause,
or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness
to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation,
as the case may be; provided that clause (ii) of this paragraph (b) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness
if such sale or transfer is permitted hereunder; provided, further, that (x) with respect to any breach or default referred
to in clause (ii) above with respect to a financial covenant in any such Indebtedness, such breach or default shall
only constitute an Event of
Default hereunder
if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments thereunder and (y)
any failure described under clauses (i) or (ii) above is unremedied and is not waived
by the holders of such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article
7; or
(c)
Breach of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with
any term or condition contained in Section 5.01(e)(i) (provided that (x) the delivery of a notice
of Default or Event of Default at any time or (y) the curing or waiver of the underlying Default or Event of Default with respect
to which notice is required to be given will, in each case, automatically cure any Default and/or Event of Default arising from the failure
to timely deliver such notice of Default or Event of Default, as applicable (unless, in each case, a Responsible Officer of the Parent
Borrower had actual knowledge of the Default or Event of Default with respect to which such notice was required and intentionally withheld
such notice prior to such delivery, cure or waiver)), Section 5.02 (as it applies to the preservation of
the existence of the Parent Borrower), or Article 6 (other than Section 6.14);
provided that, notwithstanding this clause (c), no breach or default by any Loan Party under Section
6.15(a) will constitute an Event of Default with respect to any Term Loans unless and until the Required Revolving Lenders have accelerated
the Revolving Loans and any Additional Revolving Loans, terminated the commitments under the Revolving Facility and demanded repayment
of, or otherwise accelerated, the Indebtedness or other obligations under the Revolving Facility and have not rescinded such demand or
acceleration (the “Financial Covenant Standstill”); it being understood and agreed that any breach of Section
6.15(a) (or any other financial covenant) is subject to cure as provided in Section 6.15(b), and no Event
of Default shall arise under Section 6.15(a) until the 10th Business Day after the day on which financial
statements are required to be delivered for the relevant Fiscal Quarter under Section 5.01(a) or (b),
as applicable, and then only to the extent the Cure Amount has not been received on or prior to such date; or
(d)
Breach of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in
any Loan Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of
doubt, any Perfection Certificate) (limited, on the Closing Date, solely to the Specified Representations and representations referred
to in any officer’s certificate delivered on the Closing Date that specifically refers to this Section
7.01(d)), shall be untrue in any material respect as of the date made or deemed made and such untrue representation, warranty or
certification shall remain untrue for a period of 30 days after notice from the Administrative Agent to the Parent Borrower (which notice
shall only be given at the direction of the Required Lenders); or
(e)
Other Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained
herein or in any of the other Loan Documents, other than any such term referred to in any other Section of this Article
7, which default has not been remedied or waived within 30 days (or, in the case of a Default by any Loan Party under Section
6.14, 10 Business Days), in each case after receipt by the Parent Borrower of written notice thereof from the Administrative Agent;
or
(f)
Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry
by a court of competent jurisdiction of a decree or order for relief in respect of Holdings, a Borrower or any of its Restricted Subsidiaries
(other than any Immaterial Subsidiary) (any such Person, a “Specified Person”) in an involuntary case under any Debtor
Relief Law now or hereafter in effect, which decree or order is not stayed or dismissed; or any other similar relief shall be granted
under any applicable federal, state or local law, which relief is not stayed or dismissed; or (ii)
the commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by a court having jurisdiction
in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over any Specified Person,
or over all or
a substantial part of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of any Specified
Person for all or a substantial part of its property, which remains, in any case under this clause (f), undismissed,
unvacated, unbonded and unstayed pending appeal for 60 consecutive days; or
(g)
Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry
against any Specified Person of an order for relief, the commencement by any Specified Person of a voluntary case under any Debtor Relief
Law, or the consent by any Specified Person to the entry of an order for relief in an involuntary case or to the conversion of an involuntary
case to a voluntary case, under any Debtor Relief Law, or the consent by any Specified Person to the appointment of or taking possession
by a receiver, receiver and manager, trustee or other custodian for all or a substantial part of its property; (ii)
the making by any Specified Person of a general assignment for the benefit of creditors; or (iii)
the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due; or
(h)
Judgments and Attachments. The entry of one or more final money judgments, writs or warrants of attachment or similar process
against a Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time an
amount in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party as to which
the indemnifying party has been notified and not denied its indemnification obligations, self-insurance (if applicable) or insurance
as to which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar
process remains unpaid, undischarged, unvacated, unbonded and unstayed pending appeal for a period of 60 consecutive days; or
(i)
Employee Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability
of the Parent Borrower or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a
Material Adverse Effect; or
(j)
Change of Control. The occurrence of a Change of Control; or
(k)
Guaranties, Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i)
any material Loan Guaranty for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result
of the occurrence of the Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation
in writing by any Loan Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance
with the terms thereof), (ii) this Agreement or any material Collateral Document
or any Lien on a material portion of the Collateral ceasing to be in full force and effect (other than by reason of a release of Collateral
in accordance with the terms hereof or thereof, the occurrence of the Termination Date or any other termination of such Collateral Document
in accordance with the terms thereof) or being declared by a court of competent jurisdiction to be null and void or (iii)
other than in any bona fide, good faith dispute as to the scope of Collateral or whether any Lien has been, or is required to be released,
the contesting by any Loan Party of the validity or enforceability of any material provision of any Loan Document (or any Lien on a material
portion of the Collateral purported to be created by the Collateral Documents) in writing or denial by any Loan Party in writing that
it has any further liability (other than by reason of the occurrence of the Termination Date or any other termination of any other Loan
Document in accordance with the terms thereof), including with respect to future advances by the Lenders, under any Loan Document to
which it is a party; it being understood and agreed that any such loss of perfection or priority resulting from the Administrative Agent
no longer having control of Collateral or possession of Collateral actually delivered to it or from Uniform Commercial Code filings having
lapsed because a Uniform Commercial Code continuation statement was not timely filed, in each case shall not result in an Event of Default
under this clause (k); or
(l)
Subordination. The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute
senior indebtedness under the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in
excess of the Threshold Amount (in each case, to the extent required by such subordination provision) or any such subordination provision
being invalidated by a court of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations
of the parties thereto;
then, and in every
such Event of Default (other than (x) an Event of Default with respect to the Parent Borrower described in clause (f)
or (g) of this Article or (y) any Event of Default
arising under Section 6.15(a)), and at any time
thereafter during the continuance of such Event of Default, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Parent Borrower, take any of the following actions, at the same or different times: (i)
terminate the Revolving Credit Commitments, and thereupon such Commitments shall terminate immediately, (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due
and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers and (iii)
require that the applicable Borrowers deposit in the LC Collateral Account an additional amount in Cash as reasonably requested by the
Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus the amount then on deposit
in the LC Collateral Account); provided that (A) upon the occurrence of
an Event of Default with respect to the Parent Borrower described in clause (f)
or (g) of this Article, any such Commitments
shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers, and the obligation of the applicable Borrowers to Cash
collateralize the outstanding Letters of Credit as aforesaid shall automatically become effective, in each case without further action
of the Administrative Agent or any Lender and (B) during the continuance of any
Event of Default arising under Section 6.15(a),
after giving effect to the proviso to Section 7.01(c),
(X) solely upon the request of the Required Revolving Lenders (but not the Required Lenders or any other Lender or group of Lenders),
the Administrative Agent shall, by notice to the Parent Borrower, (1) terminate
the Revolving Credit Commitments, and thereupon such Revolving Credit Commitments shall terminate immediately, (2)
declare the Revolving Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared
to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Revolving Loans so declared
to be due and payable, together with accrued interest thereon and all fees and other obligations of the applicable Borrowers accrued
hereunder in respect of the Revolving Loans, shall become due and payable immediately, without presentment, demand, protest or other
notice in respect thereof of any kind, all of which are hereby waived by the Borrowers and (3)
require that the applicable Borrowers deposit in the LC Collateral Account an additional amount in Cash as reasonably requested by the
Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus the amount then on deposit
in the LC Collateral Account) and (Y) subject to the Financial Covenant Standstill, the Administrative Agent may, and at the request
of the Required Lenders shall, by notice to the Parent Borrower, declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations
of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and during the continuance of an Event of Default, subject
to the Intercreditor Agreement and any other applicable intercreditor agreement, the Administrative Agent may, and at the request of
the Required Lenders shall, exercise any rights and remedies provided to
the Administrative
Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC. Notwithstanding anything in this Article
7 to the contrary, (i) no exercise of remedies under the Loan Documents or at law or equity may occur with respect to any action taken,
and publicly reported or reported to the Administrative Agent or the Lenders, more than two years prior to such exercise of remedies;
provided that this clause (i) shall not be applicable with respect to an Event of Default if (x) the Administrative Agent
has commenced any remedial action in respect of any such Event of Default or (y) a Responsible Officer of the Parent Borrower had actual
knowledge of such Event of Default and intentionally withheld delivering a notice of such Event of Default in accordance with Section
5.01(e)), and (ii) each Lender and the Administrative Agent hereby acknowledges and agrees that the Parent Borrower and its Subsidiaries
may be required to restate historical financial statements as the result of the implementation of changes in GAAP or IFRS, or the respective
interpretation thereof, and that such restatements will not result in a Default or an Event of Default under the Loan Documents.
Article
8 THE
ADMINISTRATIVE AGENT
Section
8.01. General.
Each
of the Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and
as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints
JPM (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties
and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Each
of the Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent
of (and to hold any security interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes
of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent
shall bind such Secured Party.
Any
Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include
each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding
any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan
Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information
to them.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting
the generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent”
herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations
arising under agency
doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between independent contracting parties, (b)
the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary
rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in
writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall
be necessary under the relevant circumstances as provided in Section
9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion
of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements
of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings,
the Parent Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative
Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party
for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall
be necessary, under the relevant circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent
jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge
of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Parent Borrower
or any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii)
the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence
of any Default or Event of Default, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or document, (v) the
creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi)
the satisfaction of any condition set forth in Article
4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent or (vii) any property, book or record of any Loan Party or any Affiliate
thereof, provided, further that, the foregoing paragraph is solely for the benefit of the Administrative Agent and not any Lender.
Each
Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or
under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have
under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code
or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a
Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case
under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Parent Borrower, the Administrative Agent and each
Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the
Loan Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative
Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents
may be exercised solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the
Collateral pursuant to a
public or private
sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent,
as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment
of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply all or any portion of the Obligations
as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative
Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition.
No
holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each
of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or
by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes
and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon
the instruction of the Required Lenders:
(a)
consent to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations
in connection with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law),
including Section 363 thereof;
(b)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant
to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363 thereof;
(c)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant
to the applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or 9-620 of the
UCC;
(d)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance
with applicable law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e)
estimate the amount of any contingent or unliquidated Secured Obligations of such Lender or other Secured Party;
it being understood
that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the Collateral by the
Administrative Agent pursuant to the foregoing clauses (b),
(c) or (d)
without its prior written consent.
Each
Secured Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase
or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under
clauses (b), (c)
or (d) of the preceding paragraph, the Secured
Obligations owed to all of the Secured Parties (other than with respect to contingent or unliquidated liabilities as set forth in the
next succeeding paragraph) may be, and shall be, credit bid by
the Administrative
Agent on a ratable basis. For the avoidance of doubt, nothing in this Article
8 shall limit any rights of Holdings or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions
of any other applicable Debtor Relief Law).
With
respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured
Parties, but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding
paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative
Agent to credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative
Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot
be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with
the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each
Secured Party whose Secured Obligations are credit bid under clauses (b),
(c) or (d)
of the third preceding paragraph shall be entitled to receive interests in the Collateral or any other asset acquired in connection
with such credit bid (or in the Capital Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on
a ratable basis in accordance with the percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party
that were credit bid in such credit bid or other Disposition by (y) the aggregate amount of all Secured Obligations that were credit
bid in such credit bid or other Disposition.
In
addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure is then
due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and
all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03)
allowed in such judicial proceeding; and
(ii)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative
Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amount due to the Administrative Agent under Sections 2.12
and 9.03.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing
Bank in any such proceeding.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank,
the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received
notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The
Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents
appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their
respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
The
Administrative Agent may resign at any time by giving thirty days’ written notice to the Lenders, the Issuing Banks and the Parent
Borrower. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the
Parent Borrower may, upon thirty days’ notice, remove the Administrative Agent. Upon receipt of any such notice of resignation
or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Parent Borrower (not to
be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company or
other Person reasonably acceptable to the Parent Borrower with offices in the U.S.; provided that during the existence and continuation
of an Event of Default under Section 7.01(a) or,
with respect to the Parent Borrower, Section 7.01(f)
or (g), no consent of the Parent Borrower shall
be required. If no successor shall have been appointed as provided above and accepted such appointment within thirty days after the retiring
Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of
a retirement, the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks,
appoint a successor Administrative Agent meeting the qualifications set forth above (including, for the avoidance of doubt, consent of
the Parent Borrower) or (b) in the case of a removal, the Parent Borrower may, after consulting with the Required Lenders, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the
Administrative Agent notifies the Parent Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment
or (y) in the case of a removal, the Parent Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment,
then, in each case, such resignation or removal shall nonetheless become effective in accordance with such notice and (i) the retiring
or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents
(except that in
the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for
perfection purposes, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank
will cooperate with the Parent Borrower to enable the Parent Borrower to take such actions), until such time as the Required Lenders
or the Parent Borrower, as applicable, appoint a successor Administrative Agent, as provided for above in this Article
8. Upon the acceptance of its appointment as Administrative Agent hereunder as a successor Administrative Agent, such successor Administrative
Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative
Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative
Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section
9.13 hereof). The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor Administrative Agent. After the Administrative Agent’s resignation
or removal hereunder, the provisions of this Article and Section
9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective
Related Parties in respect of any action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative
Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding
anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative
Agent.
Any
resignation or removal of the Administrative Agent hereunder shall also constitute its resignation as Issuing Bank and the Swingline
Lender effective as of the date of effectiveness of its resignation or removal as Administrative Agent as provided above; it being understood
that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of whether any
amounts have been drawn at such time). In the event of any such resignation as an Issuing Bank or the Swingline Lender, the Parent
Borrower shall be entitled to appoint any Revolving Lender that is willing to accept such appointment as successor Issuing Bank or Swingline
Lender hereunder. Upon the acceptance of any appointment as Issuing Bank or Swingline Lender hereunder by a successor Issuing Bank or
Swingline Lender, as applicable, such successor Issuing Bank or Swingline Lender, as applicable, shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning Issuing Bank or Swingline Lender, as applicable, and the resigning
Issuing Bank and Swingline Lender, as applicable, shall be discharged from its duties and obligations in such capacity hereunder.
In the event the Swingline Lender resigns, the applicable Borrowers shall promptly repay all outstanding Swingline Loans on the
effective date of such resignation (which repayment may be effectuated with the proceeds of a Borrowing).
Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Except
for notices, reports and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit
or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any
of the
Loan Parties or
any of their respective Affiliates which may come into the possession of the Administrative Agent or any of its Related Parties.
Notwithstanding
anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent, an Issuing Bank or a Lender hereunder.
Each
Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a)
release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i)
upon the occurrence of the Termination Date, (ii) that is sold or to be sold
or transferred as part of or in connection with any Disposition permitted under the Loan Documents to a Person that is not a Loan Party,
(iii) that does not constitute (or ceases to constitute) Collateral, (iv)
if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan
Guaranty otherwise in accordance with the Loan Documents, (v) as required under
clause (d) below or (vi) if approved,
authorized or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under
the relevant circumstances as provided in Section 9.02) in accordance with Section
9.02;
(b)
without limiting Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan
Guaranty (i) if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction
or series of related transactions or any event or other circumstance permitted hereunder); provided, that the release of any Subsidiary
Guarantor from its obligations under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described
in clause (a) of the definition thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of
such type, after giving pro forma effect to such release and the consummation of the transaction that causes such Person to be an Excluded
Subsidiary of such type, the Parent Borrower is deemed to have made a new Investment in such Person for purposes of Section
6.06 (as if such Person were then newly acquired) in an amount equal to the portion of the fair market value of the net assets of
such Person attributable to the Parent Borrower’s equity interest therein as estimated by the Parent Borrower in good faith and
such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such
time and/or (ii) upon the occurrence of the Termination Date;
(c)
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any
Lien on such property that is permitted by Sections 6.02(c), 6.02(d), 6.02(e),
6.02(g), 6.02(l), 6.02(m), 6.02(n),
6.02(o), 6.02(q), 6.02(r), 6.02(u),
6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i), 6.02(bb),
6.02(cc), 6.02(dd), 6.02(ee), 6.02(ff),
6.02(gg), 6.02(hh), 6.02(ii), 6.02(ll),
6.02(tt) and 6.02(uu) (and any Refinancing Indebtedness in respect of any thereof
to the extent such Refinancing Indebtedness is permitted to be secured under Section 6.02(k)); and
(d)
enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect
to Indebtedness (including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i)
required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (ii)
secured by Liens, and which Indebtedness contemplates an intercreditor, subordination, collateral trust or similar agreement.
Upon
the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under
the Loan Guaranty or its Lien on any Collateral pursuant to this Article
8. In each case as specified in this Article 8,
the Administrative Agent
will (and each
Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrowers’ expense, execute and deliver to
the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents or to subordinate its interest therein, or to release
such Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the Loan Documents and this
Article 8. The parties hereto acknowledge and agree
that the Administrative Agent may rely conclusively as to any of the matters described in this Section
9.02 and Section 9.22 (including as to its authority
hereunder and thereunder) on a certificate or similar instrument provided to it by any Loan Party without further inquiry or investigation,
which certificate shall be delivered to the Administrative Agent by the Loan Parties upon request.
The
Administrative Agent is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any other
intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness (i) that
is (A) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B) secured by
Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral
trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar agreement, an “Additional
Agreement”) and/or (b) Secured Hedging Obligations and/or Banking Services Obligations, whether or not constituting Indebtedness,
and each Secured Party acknowledges that the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any Additional
Agreement is binding upon them. Each Secured Party hereby (a) acknowledges that it has received a copy of the Intercreditor Agreement
and consents to the subordination of the Liens on the Collateral securing the Secured Obligations on the terms set forth in the Intercreditor
Agreement, (b) agrees that it will be bound by, and will not take any action contrary to, the provisions of the Intercreditor Agreement,
any other Acceptable Intercreditor Agreement or any Additional Agreement and (c) authorizes and instructs the Administrative Agent to
enter into the Intercreditor Agreement or any Additional Agreement (including any Acceptable Intercreditor Agreement) and to subject
the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement
to the Secured Parties to extend credit to the Borrowers, and the Secured Parties are intended third-party beneficiaries of such provisions
and the provisions of the Intercreditor Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To
the extent that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrowers in accordance
with the terms of this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion
to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder
or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Section
8.02. Payment.
(a)
Each Lender and each Issuing Bank hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative
Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates
(whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a
“Payment”)
were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion
thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the
amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon
in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount
is repaid to the Administrative Agent at 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 from time to time in effect, and (y) to the extent permitted
by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense
or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any
Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice
of the Administrative Agent to any Lender under this Section 8.02(a) shall be conclusive, absent manifest
error.
(b)
Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that
is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or
any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied
by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender
agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender
shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly,
but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion
thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including
the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent
at 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 from time to time in effect.
(c)
The Parent Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is
not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated
to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or
otherwise satisfy any Obligations owed by the Borrowers or any other Loan Party; provided that nothing in this Section
8.02 shall be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due
date for), the Secured Obligations of the Loan Parties relative to the amount (and/or timing for payment) of the Secured Obligations
that would have been payable had such erroneous Payment not been made; provided, further, that this clause (c) shall
not apply to the extent any such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised
of funds received by the Administrative Agent from or on behalf of the Parent Borrower or any other Loan Party for the purpose of making
such erroneous Payment.
(d)
Each party’s obligations under this Section 8.02 shall survive the resignation or replacement
of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments
or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
Article
9 MISCELLANEOUS
Section
9.01. Notices.
(a)
Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph
(b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(i)
if to any Loan Party, to such Loan Party in the care of Holdings at:
Bowlero
Corp.
222
West 44th Street
New
York, New York 10036
Telephone:
+ 1 212 777-2622
Attention:
Robert Lavan
Email:
BLavan@bowlerocorp.com
(ii)
if to the Administrative Agent, at: from
the Borrower, to JPMorgan Chase Bank, N.A.,
at the address separately provided to the Borrower;
(iii)
if to the Administrative Agent from the Lenders, to:
JPMorgan
Chase Bank, N.A.,
500
Stanton Christiana Rd.
NCC5
/ 1st383 Madison Ave,
Floor 24
Newark,
Delaware 19713
New
York, NY 10179
Attention:
Loan & Agency Services Group-Brandy KilroyReema
Motwani
Telephone:
+1 302-634-9596
Fax:
+1 302 634-3301
Email:
brandy.kilroy@chasereema.motwani@jpmorgan.com
with
a copy to:
(iv)
if to the Administrative Agent from the Lenders, for operational matters, to JPMorgan
Chase Bank, N.A at the address separately provided in the administrative questionnaire,
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd.
NCC5
/ 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-William
Telephone:
+1 302 634-1964
Fax:
+1 302 634-3301
Email:
william.tanzilli@chase.com
(v)
(iii) if to any Lender,
to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All such notices
and other communications (A) sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when delivered in person or by courier
service and signed
for against receipt thereof or three Business Days after dispatch if sent by certified or registered mail, in each case, delivered, sent
or mailed (properly addressed) to the relevant party as provided in this Section
9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section
9.01 or (B) sent by facsimile shall be deemed to have been given when sent
and when receipt has been confirmed by telephone; provided that notices and other communications sent by telecopier shall be deemed
to have been given when sent (except that, if not given during normal business hours for the recipient, such notices or other communications
shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in clause (b)
below shall be effective as provided in such clause (b).
(b)
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including
e-mail and Internet or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent.
The Administrative Agent or the Parent Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided
that approval of such procedures may be limited to particular notices or communications. All such notices and other communications
(i) sent to an e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement); provided that if not given during the normal business hours of the recipient,
such notice or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient,
and (ii) posted to an Internet or Intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i)
of notification that such notice or communication is available and identifying the website address therefor.
(c)
Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties
hereto; it being understood and agreed that the Parent Borrower may provide any such notice to the Administrative Agent as recipient
on behalf of itself, the Swingline Lender, each Issuing Bank and each Lender.
Section
9.02. Waivers;
Amendments.
(a)
No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder
and under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless
the same is permitted by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose
for which it is given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the
issuance of any Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative
Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b)
Subject to clauses (A), (B), (C), (D) and (E) of
this Section 9.02(b) and Sections 9.02(c) and (d) below,
neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except (i)
in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Parent Borrower and the Required
Lenders (or the
Administrative
Agent with the consent of the Required Lenders) or (ii) in the case of any other
Loan Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the
terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each
Loan Party that is party thereto, with the consent of the Required Lenders; provided that, notwithstanding the foregoing:
(A)
except with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required
Lenders), no such agreement shall;
(1)
increase the Commitment or Additional Commitment of such Lender (other than with respect to any Incremental Facility pursuant
to Section 2.22 in respect of which such Lender has agreed to be an Additional Lender); it being understood
that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant,
Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments or Additional Commitments shall constitute
an increase of any Commitment or Additional Commitment of such Lender;
(2)
reduce or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment
Date (other than, in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment;
it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio used in the calculation
of any mandatory prepayment (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction or forgiveness
of any principal amount due hereunder);
(3)
(x) extend the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the
date of any scheduled payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for administrative
reasons agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from, any Default or Event
of Default or any mandatory prepayment; it being understood that no change in the definition of “First Lien Leverage Ratio”
or any other ratio used in the calculation of any mandatory prepayment (including any component definition thereof) shall constitute
such an extension or postponement);
(4)
reduce the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrowers to pay interest
at the default rate of interest under Section 2.13(d), which shall only require the consent of the Required
Lenders) or the amount of any fee owed to such Lender; it being understood that no change in (i) the definition of “First Lien
Leverage Ratio” or any other ratio used in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the calculation
of any other interest or fee due hereunder (including any component definition thereof) or (ii) the MFN Provision shall constitute a
reduction in any rate of interest or fee hereunder;
(5)
extend the expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification
or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional Commitment
of any Lender; and
(6)
waive, amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its
terms alter the pro rata sharing of payments required thereby (except in connection with any transaction permitted under Sections
2.22, 2.23, 9.02(c) and/or 9.05(g)
or as otherwise provided in this Section 9.02);
(B)
no such agreement shall:
(1)
change (x) any of the provisions of Section 9.02(a) or Section 9.02(b)
or the definition of “Required Lenders” to reduce any voting percentage required to waive, amend or modify any right thereunder
or make any determination or grant any consent thereunder, without the prior written consent of each Lender or (y) the definition of
“Required Revolving Lenders” without the prior written consent of each Revolving Lender (it being understood that neither
the consent of the Required Lenders nor the consent of any other Lender shall be required in connection with any change to the definition
of “Required Revolving Lenders”);
(2)
release all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted
herein or in the other Loan Documents, including pursuant to Article 8 or Section
9.22 hereof or pursuant to any Acceptable Intercreditor Agreement), without the prior written consent of each Lender; or
(3)
release all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein
or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without
the prior written consent of each Lender;
(C)
solely with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender),
any such agreement may (x) waive, amend or modify Section 6.15 (or the definition of “First Lien Leverage Ratio”
or any component definition of any of the foregoing, in each case, as any such definition is used solely for purposes of Section
6.15) or waive any Default or Event of Default in respect of Section 6.15 (other than as permitted under clause
(y)), (y) waive, amend or modify any condition precedent set forth in Section 4.02 hereof as it pertains to any Revolving
Loan and/or Additional Revolving Loan and/or (z) waive any Default or Event of Default that results from any representation made or deemed
made by any Loan Party in any Loan Document in connection with any Credit Extension under the Revolving Facility being untrue in any
material respect as of the date made or deemed made;
(D)
solely with the consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, any such
agreement may (x) increase or (y) decrease the Letter of Credit Sublimit;
(E)
solely with the consent of the Parent Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing
Banks, subject to the provisions of Section 1.11, this Agreement may be amended or otherwise modified to permit the availability
of Revolving Loans and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement
and any other Loan Document to accommodate the inclusion of any such new currency; and
(F)
the consent of each Lender directly and adversely affected thereby shall be required for the subordination of Liens with respect
to all or substantially all of the value of the Collateral securing the Facilities (other than in connection with permitted asset sales,
Dispositions, sale leasebacks, capital leases, mergers, liquidations, dissolutions or as otherwise permitted under this Agreement and
other than in connection with any debtor-in-possession (or equivalent or similar) financing or use of Collateral in an insolvency proceeding
or any other proceeding under any Debtor Relief Laws, or as permitted under any Acceptable Intercreditor Agreement) to any Lien securing
other Material Indebtedness or subordinating the Facilities in right of payment to any other Material Indebtedness (other than in connection
with permitted asset sales, Dispositions, sale leasebacks, capital leases, mergers, liquidations, dissolutions or as otherwise permitted
under this Agreement and other than in connection with any debtor-in-possession (or equivalent or similar) financing or use of Collateral
in an insolvency proceeding or any other proceeding under any Debtor Relief Laws, or as permitted under any Acceptable Intercreditor
Agreement), in each case unless such adversely affected Lender is offered the opportunity to participate on no less than a pro rata basis
in such other Indebtedness (considering, at the election of the Parent Borrower, the holders of any other then-existing Indebtedness
participating in such new facility);
provided,
further, that no such agreement shall (x) amend, modify or otherwise affect the rights or duties of the Administrative Agent,
any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or
the Swingline Lender, as the case may be and (y) amend or modify the provisions of Section 2.05 (as it applies to any Issuing
Bank) or any letter of credit application or any bilateral agreement between the Parent Borrower and any Issuing Bank regarding the respective
rights and obligations between the Parent Borrower and such Issuing Bank in connection with the issuance (or deemed issuance) of Letters
of Credit hereunder, without the prior written consent of, with respect to Section 2.05, the Administrative Agent, the
Parent Borrower and such Issuing Bank, or otherwise, the Parent Borrower and such Issuing Bank . The Administrative Agent may also amend
the Commitment Schedule to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations
pursuant to Section 2.09, incurrences of Additional Commitments or Additional Loans pursuant to Sections 2.22,
2.23 or 9.02(c) and reductions or terminations of any such Additional Commitments or Additional Loans. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment and any Additional Commitment of any Defaulting Lender may not be increased without the consent
of such Defaulting Lender (it being understood that any Commitment, Additional Commitment or Loan held or deemed held by any Defaulting
Lender shall be excluded from any vote hereunder that requires the consent of any Lender, except as expressly provided in Section
2.21(b)). Notwithstanding the foregoing, but without limiting the provisions of Section 2.22(g), this Agreement may
be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Parent Borrower
(i) to add one or more additional credit facilities to this Agreement and to permit any extension of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other
Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any
determination of
the Required Lenders on substantially the same basis as the Lenders prior to such inclusion.
(c)
Notwithstanding the foregoing, this Agreement may be amended:
(i)
with the written consent of the Parent Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing
or replacement of all or any portion of the outstanding Amendment No. 8 Term Loans or any then-existing Additional Term Loans under any
applicable Class (any such loans being refinanced or replaced, the “Replaced Term Loans”) with one or more replacement
term loans hereunder (“Replacement Term Loans”) pursuant to a Refinancing Amendment; provided that
(A)
the aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term
Loans (plus (1) any additional amounts permitted to be incurred under
Section 6.01 and, to the extent any such additional amounts are secured, the related Liens are permitted under Section
6.02 and plus (2) the amount of accrued interest, penalties and premium
(including any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront fees, original
issue discount or initial yield payments), commissions and expenses associated therewith),
(B)
any Replacement Term Loans (other than customary bridge loans with a maturity date of not longer than one year; provided
that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject
to the requirements of this clause (B)) must have a final maturity date that is equal to or later than the final maturity
date of, and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced
Term Loans at the time of the relevant refinancing, provided, that the foregoing limitation shall not apply to Replacement Term
Loans having an aggregate principal amount outstanding not exceeding the greater of $170,000,000 and 50% of Consolidated Adjusted EBITDA
as of the last day of the most recently ended Test Period (as selected by the Parent Borrower),
(C)
any Replacement Term Loans may be pari passu or junior in right of payment and pari passu (without regard to the
control of remedies) or junior with respect to the Collateral with the remaining portion of the Initial Term Loans or Additional Term
Loans (provided that if pari passu or junior as to payment or Collateral, such Replacement Term Loans shall be subject
to an Acceptable Intercreditor Agreement and may be, at the option of the Parent Borrower, documented in a separate agreement or agreements),
or be unsecured,
(D)
if any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the Collateral,
(E)
if any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or
more Loan Parties,
(F)
any Replacement Term Loans that are pari passu with the Amendment No. 8 Term Loans in right of payment and security may
participate (A) in
any
voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans
as set forth in Section 2.11(b)(vi),
(G)
any Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the applicable
Borrowers and the lenders providing such Replacement Term Loans may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall
be (i) substantially identical to, or (taken as a whole) no more favorable (as determined by the Parent Borrower in good faith) to the
lenders providing such Replacement Term Loans than those applicable to the Replaced Term Loans (other than covenants or other provisions
applicable only to periods after the latest Maturity Date of such Replaced Term Loans (in each case, as of the date of incurrence of
such Replacement Term Loans)), (ii) then-current market terms (as determined by the Parent Borrower in good faith at the time of incurrence
or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (iii) reasonably acceptable
to the Administrative Agent (it being agreed that covenants and events of default of any Replacement Term Loans that are more favorable
to the lenders or the agent of such Replacement Term Loans than those contained in the Loan Documents and are then conformed (or added)
to the Loan Documents pursuant to the applicable Refinancing Amendment shall thereafter be deemed satisfactory to the Administrative
Agent), and
(ii)
with the written consent of the Parent Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit
the refinancing or replacement of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment
under the applicable Class (any such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced,
a “Replaced Revolving Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving
Facility”) pursuant to a Refinancing Amendment; provided that:
(A)
the aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced
Revolving Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent
any such additional amounts are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount
of accrued interest, penalties and premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront
fees and original issue discount), commissions and expenses associated therewith),
(B)
no Replacement Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided
that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject
to the requirements of this clause (B)) may have a final
maturity
date (or require commitment reductions) prior to the final maturity date of the relevant Replaced Revolving Facility at the time of such
refinancing,
(C)
any Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard
to the control of remedies) or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments or
any Additional Revolving Credit Commitments (provided that if pari passu or junior as to payment or Collateral, such Replacement
Revolving Facility shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Parent Borrower, documented
in a separate agreement or agreements), or be unsecured,
(D)
if any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E)
if any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F)
any Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving
Credit Commitments and Extended Revolving Loans set forth in the proviso to clause (i) of Section 2.23(a),
mutatis mutandis, to the same extent as if fully set forth in this Section
9.02(c)(ii),
(G)
any Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause
(F), optional prepayment and redemption terms as the applicable Borrowers and the lenders providing such Replacement Revolving
Facility may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums,
optional prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G))
shall be (i) substantially identical to, or (taken as a whole) no more favorable (as determined by the Parent Borrower in good faith)
to the lenders providing such Replacement Revolving Facility than those applicable to the Replaced Revolving Facility (other than covenants
or other provisions applicable only to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of
the date of incurrence of the relevant Replacement Revolving Facility), (ii) then-current market terms (as determined by the Parent Borrower
in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type
of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed that covenants and events of default of any
Replacement Revolving Facility that are more favorable to the lenders or the agent of such Replacement Revolving Facility than those
contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable Refinancing Amendment
shall be deemed satisfactory to the Administrative Agent); provided, that if any financial maintenance covenant is added to any
such Replacement Revolving Facility and such financial maintenance covenant is more favorable to the lenders under such Replacement Revolving
Facility than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after the applicable Latest
Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the
benefit
of such more favorable financial maintenance covenant (together with, at the election of the Parent Borrower, any applicable “equity
cure” provisions with respect to any such financial maintenance covenant); and
(J)
the commitments in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all
fees thereunder and payable in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility
is implemented;
provided,
further, that, in respect of each of clauses (i)
and (ii) of this clause (c),
(x) any Non-Debt Fund Affiliate and Debt Fund Affiliate shall be permitted (without Administrative Agent consent) to provide any Replacement
Term Loans, it being understood that in connection with such Replacement Term Loans, the relevant Non-Debt Fund Affiliate or Debt Fund
Affiliate, as applicable, shall be subject to the restrictions applicable to such Persons under Section
9.05 as if such Replacement Term Loans were Term Loans and (y) any Debt Fund Affiliate (but not any Non-Debt Fund Affiliate) may
provide (without Administrative Agent consent) any Replacement Revolving Facility.
Each party hereto
hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Parent Borrower, the
affected Borrowers, the Administrative Agent and the lenders providing the relevant Replacement Term Loans or the Replacement Revolving
Facility, as applicable, to the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement Term
Loans or Replacement Revolving Facility, as applicable, incurred or implemented pursuant thereto (including any amendment necessary to
treat the loans and commitments subject thereto as a separate “tranche” and “Class” of Loans and/or commitments
hereunder). It is understood that any Lender approached to provide all or a portion of any Replacement Term Loans or any Replacement
Revolving Facility may elect or decline, in its sole discretion, to provide such Replacement Term Loans or Replacement Revolving Facility.
(d)
Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of
this Agreement or any provision of any other Loan Document, (i) the Parent Borrower
and the Administrative Agent may, without the input or consent of any Lender, amend, supplement and/or waive any guaranty, collateral
security agreement, pledge agreement and/or related document (if any) executed in connection with this Agreement to (x) comply with any
Requirements of Law or the advice of counsel or (y) cause any such guaranty, collateral security agreement, pledge agreement or other
document to be consistent with this Agreement and/or the relevant other Loan Documents, (ii)
the Parent Borrower and the Administrative Agent may, without the input or consent of any other Lender (other than the relevant Lenders
(including Additional Lenders) providing Loans under such Sections), effect amendments to this Agreement and the other Loan Documents
as may be necessary in the reasonable opinion of the Parent Borrower and the Administrative Agent to (A)
effect the provisions of Sections 2.22, 2.23, 5.12, 5.14,
5.15, 5.16 or 9.02(c), or any other provision specifying
that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent and/or (B)
add terms (including representations and warranties, conditions, prepayments, covenants or events of default), in connection with the
addition of any Loan or Commitment hereunder or the incurrence of any Incremental Equivalent Debt, any Replacement Term Loans, any Replacement
Revolving Facility, any Replacement Debt and/or any Refinancing Indebtedness incurred in reliance on Section
6.01(p) with respect to Indebtedness originally incurred in reliance on Section 6.01(z), that are favorable
to the then-existing Lenders, as reasonably determined by the Administrative Agent (it being understood that, where applicable, any such
amendment may be effectuated as part of an Incremental Facility Amendment and/or a Refinancing Amendment), (iii)
if the Administrative Agent and the Parent Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error
or any error or omission of a technical or administrative nature or any necessary or desirable technical or similar change, in each case,
in any provision of any Loan Document,
then the Administrative
Agent and the Parent Borrower shall be permitted to amend such provision solely to address such matter as reasonably determined by them
acting jointly without the input or consent of any Lender, (iv) the Administrative
Agent and the Parent Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement or any Acceptable
Intercreditor Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the input or consent
of any Lender and (v) any amendment, waiver or modification of any term or provision
that directly affects Lenders under one or more Classes and does not directly affect Lenders under one or more other Classes may be effected
with the consent of Lenders owning 50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of
the Required Lenders.
(e)
Notwithstanding anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive
the benefit of any additional or modified financial maintenance covenant as a result of the application of the provisions set forth in
clause (g) of the definition of “Incremental Equivalent Debt”, Section 2.22(a)(iv) or
Section 9.02(c)(ii)(I), then the Administrative Agent and the Parent Borrower shall be permitted, without
the need for consent by any other Person, to effectuate such provisions by promptly entering into an amendment to this Agreement.
(f)
Notwithstanding anything to the contrary in any Loan Document, in connection with any determination as to whether the requisite
Lenders have (A) consented (or not consented) to any waiver, amendment or modification of any provision of this Agreement or any other
Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to this Agreement or any Loan Document
or (C) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect
to, or under, this Agreement or any other Loan Document, any Lender (other than an Excluded Lender) that, as a result of its interest
(or its and its Covered Affiliates’ collective interests) in any total return swap, total rate of return swap, credit default swap
or other derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative
contract entered into pursuant to bona fide market making activities), has a net short position with respect to any of the Loans or Commitments
hereunder or with respect to any other tranche, class or series of Indebtedness for borrowed money incurred or issued by Holdings or
any of its Subsidiaries or Parent Companies at such time of determination (including commitments with respect to any revolving credit
facility) (each such item of Indebtedness, including the Loan and Commitments, “Specified Indebtedness” and each such
Lender, a “Net Short Lender”) shall have no right to vote with respect to any waiver, amendment or modification of
this Agreement or any other Loan Documents and shall be deemed to have voted its interest as a Lender without discretion in the same
proportion as the allocation of voting with respect to such matter by Lenders who are not Net Short Lenders (including in any plan of
reorganization). In connection with any waiver, amendment or modification of this Agreement or the other Loan Documents, each Lender
(other than any Excluded Lender) will be deemed to have represented to Holdings, the Borrowers and the Administrative Agent that it does
not constitute a Net Short Lender, in each case, unless such Lender shall have notified the Parent Borrower and the Administrative Agent
prior to the requested response date with respect to such waiver, amendment or modification that it constitutes a Net Short Lender (it
being understood and agreed that Holdings, the Borrowers and the Administrative Agent shall be entitled to rely on each such representation
and deemed representation).
(g)
For purposes of the preceding clause:
(i)
“Covered Affiliate” means any Affiliate of a Lender (provided that for this purpose, Affiliates shall
not include Persons that are subject to customary procedures to prevent the sharing of confidential information between such Lender and
such Person if such Person has fiduciary duties to investors or other equityholders of such Person and such investors or equityholders
are not the same as the investors or equityholders of such Lender).
(ii)
“Excluded Lender” means (A) any Lender that is a Regulated Bank, (B) any Revolving Lender as of the Closing
Date or consented to by Parent Borrower pursuant to Section 9.05(b)(i)(A) (an “Excluded Revolving
Lender”) and (C) any Affiliate of a Regulated Bank or Excluded Revolving Lender to the extent that all of the equity of such
Affiliate is directly or indirectly owned by either (I) such Regulated Bank or such Excluded Revolving Lender or (II) a parent entity
that also owns, directly or indirectly, all of the equity of such Regulated Bank.
(iii)
“Regulated Bank” means a commercial bank with a consolidated combined capital surplus of at least $5,000,000,000
that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation
organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign
bank operating pursuant to approval by and under the supervision of the Board under 12 CFR part 211; (iv) a non-U.S. branch of a foreign
bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S. depository institution
or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.
(iv)
For purposes of determining whether a Lender (alone or together with its Covered Affiliates) has a “net short position”
on any date of determination: (i) derivative contracts with respect to any Specified Indebtedness and such contracts that are the functional
equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts in other currencies shall
be converted to the Dollar equivalent thereof by such Lender in a commercially reasonable manner consistent with generally accepted financial
practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date of determination, (iii) derivative
contracts in respect of an index that includes Holdings, any Parent Company or any Subsidiary or any instrument issued or guaranteed
by Holdings, any Parent Company or any Subsidiary shall not be deemed to create a short position with respect to such Specified Indebtedness,
so long as (x) such index is not created, designed, administered or requested by such Lender or its Covered Affiliates and (y) Holdings,
its Parent Companies and the other Subsidiaries and any instrument issued or guaranteed by such persons, collectively, shall represent
less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives
Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall be deemed
to create a short position with respect to the relevant Specified Indebtedness if such Lender or its Covered Affiliates is a protection
buyer or the equivalent thereof for such derivative transaction and (x) the relevant Specified Indebtedness is a “Reference Obligation”
under the terms of such derivative transaction (whether specified by name in the related documentation, included as a “Standard
Reference Obligation” on the most recent list published by Markit, if “Standard Reference Obligation” is specified
as applicable in the relevant documentation or in any other manner), (y) the relevant Specified Indebtedness would be a “Deliverable
Obligation” under the terms of such derivative transaction or (z) Holdings, any Parent Company or any Subsidiary is designated
as a “Reference Entity” under the terms of such derivative transaction and (v) credit derivative transactions or other derivatives
transactions not documented using the ISDA CDS Definitions shall be deemed to create a short position with respect to any Specified Indebtedness
if such transactions offer the Lender or its Covered Affiliates protection against a decline in the value of such Specified Indebtedness,
or in the credit quality of Holdings, any Parent Company or any Subsidiary, in each case, other than as part of an index so long as (x)
such index is not created, designed, administered or requested by such Lender or its Covered Affiliates and (y) Holdings, any Parent
Company, the Borrowers and the Subsidiaries, and any instrument issued or guaranteed by such persons, collectively, shall represent less
than 5% of the components of such index.
Section
9.03. Expenses; Indemnity.
(a)
Subject to Section 9.05(f), the Borrowers shall pay, upon presentation of a summary statement, together
with any supporting documentation reasonably requested by the Borrowers, (i) all
reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates
(but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other
charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material
jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or
through a service such as Intralinks) of the Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents
and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document
(whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment,
modification or waiver was requested by the Borrowers) and (ii) all reasonable
and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers, the Issuing Banks or the Lenders or any of
their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket
fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local
counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or
protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or
in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing
Date, all amounts due under this paragraph (a) shall be payable by the Borrowers within 30 days of receipt by the
Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant
reimbursement request.
(b)
The Borrowers shall indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual
reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and,
if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the
case of an actual or perceived conflict of interest after the affected Person notifies the Parent Borrower of such conflict, (x) one
additional counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant
material jurisdiction to all similarly situated affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or delivery
of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective
obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby (except for any
Taxes, which shall be governed exclusively by Section 2.17), (ii)
the use of the proceeds of the Loans or any Letter of Credit or (iii) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing (including any matters arising
under Environmental Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto
(and regardless of whether such matter is initiated by a third party or by any Borrower, any other Loan Party or any of their respective
Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim,
damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any
settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee
or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim,
damage, or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents
or (ii) arises out
of any claim, litigation,
investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or
proceeding that is brought by or against the Administrative Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative
Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, any Borrower or any of its subsidiaries.
Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrowers pursuant to this Section
9.03(b) to such Indemnitee for any fees, expenses or damages to the extent such Indemnitee is not entitled to payment thereof in
accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrowers within
30 days (x) after receipt by the Parent Borrower of a written demand therefor, in the case of any indemnification obligations and (y)
in the case of reimbursement of costs and expenses, after receipt by the Parent Borrower of an invoice, setting forth such costs and
expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section
9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities arising
from any non-Tax claim.
(c)
The Borrowers shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect
to, any proceeding effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any
proceeding is so settled, compromised or consented to with the Parent Borrower’s written consent, or if there is a final judgment
entered against any Indemnitee in any such proceeding, the Borrowers agree to indemnify and hold harmless each Indemnitee to the extent
and in the manner set forth above. The Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent
shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect
of which indemnity could have been sought hereunder by such Indemnitee unless (i)
such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such
proceeding and (ii) such settlement does not include any statement as to any
admission of fault or culpability.
Section
9.04. Waiver
of Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby waives, any claim against
any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof, except, in the case of any
claim by any Indemnitee against any Borrower, to the extent such damages would otherwise be subject to indemnification pursuant to the
terms of Section 9.03.
Section
9.05. Successors
and Assigns.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns; provided that (i) except as provided under
Section 6.07 and/or pursuant to any Permitted Reorganization, a Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer
by a Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted
assignment or transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted assignment
or transfer to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns,
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Arrangers, the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b)
(i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of any Loan or Additional Commitment added pursuant to Sections 2.22, 2.23
or 9.02(c) at the time owing to it) with the prior written consent (not to be unreasonably withheld or
delayed) of:
(A)
the Parent Borrower; provided that the Parent Borrower shall be deemed to have consented to any assignment of Term Loans
(other than any such assignment to a Disqualified Institution or an affiliate thereof referred to in the last proviso of this clause
(i) and identified to the Administrative Agent as such) if it has not responded to a written request for its consent from
the Administrative Agent within 15 Business Days after receiving such written request; provided, further, that no consent
of the Parent Borrower shall be required (x) for any assignment of Initial Term Loans, Additional Term Loans, Initial Term Loan Commitments
or Additional Term Loan Commitments to another Lender, an Affiliate of any Lender or an Approved Fund or (y) during the continuance of
an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (solely with respect to
the Parent Borrower);
(B)
the Administrative Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to
another Lender, any Affiliate of a Lender or any Approved Fund, or for any assignment to the Parent Borrower and/or its Affiliates, which
otherwise complies with the terms of this Section 9.05; and
(C)
in the case of the Revolving Facility or any Additional Revolving Facility, each Issuing Bank and the Swingline Lender;
provided,
that notwithstanding the foregoing, the Parent Borrower may withhold its consent to any assignment to any Person that is not expressly
a Disqualified Institution but is known by the Parent Borrower to be an Affiliate of a Disqualified Institution without regard as to
whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of
the entire remaining amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of Loans
or commitments of the assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement
with respect to such assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of concurrent
assignments to Related Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Initial Term Loans, Additional
Term Loans, Initial Term Loan Commitments and Additional Term Loan Commitments and (y) $5,000,000 in the case of Revolving Loans, Additional
Revolving Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments unless the Parent Borrower and the Administrative
Agent otherwise consent to a lesser amount, and in each case any assigned amount may exceed such minimum amount in an integral multiple
of $1,000,000 in excess thereof;
(B)
any partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights
and obligations under this Agreement;
(C)
the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic
settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall
pay to the Administrative Agent a processing and recordation fee of $3,500; provided that (x) such fee may be waived or reduced
in the sole discretion of the Administrative Agent, (y) such fee shall not apply for any assignment to an Affiliated Lender or Debt Fund
Affiliate and (z) only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds;
(D)
the relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to
the Administrative Agent and the Parent Borrower (irrespective of whether an Event of Default under Section 7.01(a) or
Sections 7.01(f) or (g) exists) (1) an Administrative
Questionnaire and (2) any form required under Section 2.17;
and
(E)
the assigning Lender shall, concurrently with its delivery of the same to the Administrative Agent, provide the Parent Borrower
with a copy of its request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an
Event of Default under Section 7.01(a) or Section 7.01(f) or Section 7.01(g) exists).
(iii)
Except as otherwise provided in Section 9.05(g), subject to the acceptance and recording thereof
pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified
in any Assignment Agreement, the Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest assigned pursuant
to such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the
case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be (A) entitled to the
benefits of Sections 2.15, 2.17 and 9.03
with respect to facts and circumstances occurring on or prior to the effective date of such assignment and (B)
subject to its obligations thereunder and under Section 9.13). If any assignment by any Lender holding
any Promissory Note is made after the issuance of such Promissory Note, the assigning Lender shall, upon the effectiveness of such assignment
or as promptly thereafter as practicable, surrender such Promissory Note to the Administrative Agent for cancellation, and, if requested
by either the assignee or the assigning Lender, the applicable Borrowers shall issue and deliver a new Promissory Note to such assignee
and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee
and/or the assigning Lender.
(iv)
The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices a copy of
each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders and their respective
successors and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements owing to, each
Lender or Issuing Bank pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation,
or any error in such recordation, shall not affect the applicable Borrowers’ obligations in respect of such Loans and LC
Disbursements.
The entries in the Register shall be conclusive, absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Banks
and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection by each Borrower, each Issuing Bank and each Lender (but
only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v)
Upon its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible
Assignee’s completed Administrative Questionnaire and any tax certification required by Section
9.05(b)(ii)(D)(2) (unless the assignee is already a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section, if applicable, and any written consent to the relevant assignment required by paragraph
(b) of this Section, the Administrative Agent shall promptly accept such Assignment Agreement and record the
information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.
(vi)
By executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed
to confirm and agree with each other and the other parties hereto as follows: (A)
such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any
adverse claim and that the amount of its commitments, and the outstanding balances of its Loans, in each case without giving effect to
any assignment thereof which has not become effective, are as set forth in such Assignment Agreement, (B)
except as set forth in clause (A) above, such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument
or document furnished pursuant hereto, or the financial condition of the Parent Borrower or any Restricted Subsidiary or the performance
or observance by the Parent Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other Loan Document
or any other instrument or document furnished pursuant hereto; (C) such assignee
represents and warrants that it is an Eligible Assignee (and not a Disqualified Institution), legally authorized to enter into such Assignment
Agreement; (D) such assignee confirms that it has received a copy of this Agreement,
the Intercreditor Agreement and each other then-applicable Acceptable Intercreditor Agreement, together with copies of the financial
statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant
to Section 5.01 and such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment Agreement; (E)
such assignee will independently and without reliance upon the Administrative Agent, the assigning Lender or any other Lender and based
on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G)
such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c)
(i)(i) Any Lender may, without the consent of the Parent Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender
or any other Lender, sell participations to any bank or other entity (other than to any Disqualified Institution or an Affiliate thereof
referred to in the last proviso of clause (b)(i) of this Section 9.05
and identified to the Administrative Agent as such, any Defaulting Lender or any natural Person) (a “Participant”)
in all or a portion of such Lender’s rights and
obligations under
this Agreement (including all or a portion of its commitments and the Loans owing to it); provided that (A)
such Lender’s obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C)
the Borrowers, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which
any Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described
in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely
affects the Loans or commitments in which such Participant has an interest and (y) clauses (B)(1),
(2) or (3) of the first proviso to Section 9.02(b).
Subject to paragraph (c)(ii) of this Section, the applicable Borrowers agree that each Participant
shall be entitled to the benefits of Sections 2.15 and 2.17 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section (it being
understood that the documentation required under Section 2.17(f) shall be delivered to the participating
Lender, and if additional amounts are required to be paid pursuant to Section 2.17(a) or Section
2.17(c), to the Parent Borrower). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled
to the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees
to be subject to Section 2.18(c) as though it were a Lender.
(ii)
No Participant shall be entitled to receive any greater payment under Sections 2.15 or 2.17
than the participating Lender would have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Parent Borrower’s prior written consent (in its sole discretion)
expressly acknowledging such Participant may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.17 unless the Parent Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section
2.17(f) as though it were a Lender and to deliver the tax forms required to claim an exemption from or reduction of withholding Tax
with respect to payments made under any Loan Document and then only to the extent of any amount to which such Lender would be entitled
in the absence of any such participation (it being understood that the documentation required under Section
2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid pursuant to Section
2.17(a) or Section 2.17(c), to the Parent Borrower).
Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register
on which it enters the name and address of each Participant and their respective successors and assigns, and the principal amounts and
stated interest of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Loan, Letter
of Credit or any other obligation under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish
that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(d)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other
than to any Disqualified Institution, Defaulting Lender or any natural person) to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over
such Lender, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release any Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(e)
Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Parent Borrower, the option to provide to the applicable Borrowers all or any part of any Loan that
such Granting Lender would otherwise be obligated to make to the applicable Borrowers pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the
terms hereof and (iii) in no event may any Lender grant any option to provide to the applicable Borrowers all or any part of any Loan
that such Granting Lender would have otherwise been obligated to make to the applicable Borrowers pursuant to this Agreement to any Disqualified
Institution or Defaulting Lender. The making of any Loan by an SPC hereunder shall utilize the Commitment or Additional Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that
(i) neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations of the Borrowers under this Agreement (including its obligations
under Section 2.15 or 2.17) and no SPC shall be entitled to any greater amount
under Section 2.15 or 2.17 or any other provision of this Agreement or any other
Loan Document that the Granting Lender would have been entitled to receive, unless the grant to such SPC is made with the prior written
consent of the Parent Borrower (in its sole discretion), expressly acknowledging that such SPC’s entitlement to benefits under
Section 2.15 or 2.17 is not limited to what the Granting Lender would have been
entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable
for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender)
and (iii) the Granting Lender shall for all purposes including approval of
any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender of record hereunder. In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC,
it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the Requirements of Law of the U.S. or any State thereof; provided that (i) such SPC’s
Granting Lender is in compliance in all material respects with its obligations to the Borrowers hereunder and (ii) each Lender designating
any SPC hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out
of its inability to institute such a proceeding against such SPC during such period of forbearance. In addition, notwithstanding anything
to the contrary contained in this Section 9.05, any SPC may (i) with notice to, but without the prior written
consent of, the Parent Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of
its interests in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancement to such SPC.
(f)
(i)(i) Any assignment or participation by a Lender without the Parent Borrower’s consent (A)
to any Disqualified Institution or any Affiliate thereof or (B) to the extent
the Parent Borrower’s consent is required under this Section 9.05, to any other Person, shall be null
and void, and the Borrowers shall be entitled to seek specific performance to unwind any such assignment or participation
and/or specifically
enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or presenting evidence
of irreparable harm) or any other remedies available to the Borrowers at law or in equity; it being understood and agreed that Holdings,
the Parent Borrower and its subsidiaries will suffer irreparable harm if any Lender breaches any obligation under this Section
9.05 as it relates to any assignment, participation or pledge of any Loan or Commitment to any Disqualified Institution or any Affiliate
thereof or any other Person to whom the Parent Borrower’s consent is required but not obtained. Nothing in this Section
9.05(f) shall be deemed to prejudice any right or remedy that Holdings or the Borrowers may otherwise have at law or equity or pursuant
to Section 9.05(f)(ii) below;
(ii)
If any assignment or participation under this Section 9.05 is made to any Affiliate of any
Disqualified Institution (other than any Bona Fide Debt Fund that is not itself a Disqualified Institution) without the Parent Borrower’s
prior written consent (any such person, a “Disqualified Person”), then any applicable Borrower may, at its sole expense
and effort, upon notice to the applicable Disqualified Person and the Administrative Agent, (A)
terminate any Commitment of such Disqualified Person and repay all obligations of the applicable Borrowers owing to such Disqualified
Person, (B) in the case of any outstanding Term Loans held by such Disqualified
Person, purchase such Term Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid to acquire such
Term Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder and/or (C)
require such Disqualified Person to assign, without recourse (in accordance with and subject to the restrictions contained in this Section
9.05), all of its interests, rights and obligations under this Agreement to one or more Eligible Assignees and if such person does
not execute and deliver to the Administrative Agent a duly executed Assignment Agreement reflecting such assignment within five Business
Days of the date on which the Eligible Assignee executes and delivers such Assignment Agreement to such person, then such person shall
be deemed to have executed and delivered such Assignment Agreement without any action on its part; provided that in the case of
clause (C), the relevant assignment shall otherwise comply with this Section
9.05 (except that (x) no registration and processing fee required under this Section 9.05 shall
be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any Affiliated Lender pursuant to this paragraph
will not be included in calculating compliance with the Affiliated Lender Cap for a period of 90 days following such transfer; provided
that, to the extent the aggregate principal amount of Term Loans held by Affiliated Lenders exceeds the Affiliated Lender Cap on
the 91st day following such transfer, then such excess amount shall either be (x) contributed to Holdings, the Parent Borrower or any
of its subsidiaries and retired and cancelled immediately upon such contribution or (y) automatically cancelled)) and (III) in no event
shall such Disqualified Person be entitled to receive amounts set forth in Section 2.13(d). Further,
any Disqualified Person identified by the Parent Borrower to the Administrative Agent (A) shall not be permitted to (x) receive information
or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or participate in conference calls
or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for purposes of determining whether the Required
Lenders or the majority Lenders under any Class have (i) consented (or not consented) to any amendment, modification, waiver, consent
or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted
on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to or under any Loan Document, have a right to consent (or not consent), otherwise act
or direct or require the Administrative Agent or any Lender to take (or refrain from taking) any such action; it being understood that
all Loans held by any Disqualified Person shall be deemed to be not outstanding for all purposes of calculating whether the Required
Lenders, majority Lenders under any Class or all Lenders have taken any action and (y) shall be deemed to vote in the same proportion
as Lenders that are not Disqualified Persons in any proceeding under any Debtor Relief Law commenced by
or against
a Borrower or any other Loan Party and (C) shall not be entitled to receive the benefits of Section 9.03.
For the sake of clarity, the provisions in this Section 9.05(f) shall not apply to any Person that
is an assignee of any Disqualified Person, if such assignee is not a Disqualified Person;
(iii)
Upon the request of any Lender, the Administrative Agent may and the Parent Borrower will make the list of Disqualified Institutions
(other than any Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis
of such Person’s name) at the relevant time and such Lender may provide the list to any potential assignee for the purpose of verifying
whether such Person is a Disqualified Institution, in each case so long as such Lender and such potential assignee agree to keep the
list of Disqualified Institutions confidential in accordance with the terms hereof;
(iv)
The Parent Borrower shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto
to JPMDQ_Contact@jpmorgan.com and any such updates, supplements or modifications thereto shall only become effective 3 days after such
notice. In the event the list of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and
not effective (except with respect to any delivery on or prior to the Closing Date); and
(v)
Notwithstanding anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for,
or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions
or Net Short Lenders.
(g)
Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights
and obligations under this Agreement in respect of its Initial Term Loans or Additional Term Loans to an Affiliated Lender on a non-pro
rata basis (A) through Dutch Auctions, or similar transactions pursuant to
procedures to be established by the applicable “auction agent” that are consistent with this Section
9.05(g), in each case open to all Lenders holding the relevant Initial Term Loans or such Additional Term Loans, as applicable, on
a pro rata basis or (B) through open market purchases, in each case with
respect to clauses (A) and (B), without the consent of the Administrative Agent; provided
that:
(i)
any Initial Term Loans or Additional Term Loans acquired by Holdings, the Parent Borrower or any of its subsidiaries shall, to
the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided
that upon any such retirement and cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional
Term Loans, as applicable, shall be deemed reduced by the full par value of the aggregate principal amount of the Initial Term Loans
or Additional Term Loans so retired and cancelled, and each principal repayment installment with respect to the Initial Term Loans or
Additional Term Loans pursuant to Section 2.10(a) shall be reduced on a pro rata basis by the
full par value of the aggregate principal amount of Initial Term Loans or Additional Term Loans so cancelled (as applicable);
(ii)
any Initial Term Loans or Additional Term Loans acquired by any Affiliated Lender may (but shall not be required to) be contributed
to Holdings, the Parent Borrower or any of its subsidiaries or Parent Companies for purposes of cancelling such Indebtedness, and in
exchange thereof such Affiliated Lender may receive debt or equity securities of such entity or a direct or indirect parent entity or
subsidiary thereof that are otherwise permitted to be issued by such entity at such time, it being understood that (x) any such Initial
Term Loans or Additional Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired and
cancelled
immediately upon such contribution and (y) any such contribution shall be treated as a capital contribution that builds the Available
Amount pursuant to clause (iii) of the definition thereof by an amount equal to the fair market value (as determined by the Parent
Borrower in good faith) of the Initial Term Loans or Additional Term Loans so contributed; provided that if the fair market value
of such Initial Term Loans or Additional Term Loans cannot be determined by the Parent Borrower, the fair market value shall be deemed
to be the purchase price of such Initial Term Loans or Additional Term Loans paid by such Affiliated Lender); provided that upon
any such cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional Term Loans, as applicable,
shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of the Initial
Term Loans or Additional Term Loans so contributed and cancelled, and each principal repayment installment with respect to the Initial
Term Loans or Additional Term Loans pursuant to Section 2.10(a) shall be reduced pro rata by
the full par value of the aggregate principal amount of Initial Term Loans or Additional Term Loans so contributed and cancelled;
(iii)
the relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv)
after giving effect to such assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount
of all Initial Term Loans and Additional Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate principal
amount of the Initial Term Loans and Additional Term Loans then outstanding (after giving effect to any substantially simultaneous cancellations
thereof) (the “Affiliated Lender Cap”); provided that each party hereto acknowledges and agrees that the Administrative
Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever incurred or suffered by any Person in connection with any compliance or non-compliance with this clause
(g)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood
and agreed that the Affiliated Lender Cap is intended to apply to any Loans made available to Affiliated Lenders by means other than
formal assignment (e.g., as a result of an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender
or the provision of Additional Term Loans by any Affiliated Lender); provided, further, that to the extent that any assignment
to any Affiliated Lender would result in the aggregate principal amount of all Initial Term Loans and Additional Term Loans held by Affiliated
Lenders exceeding the Affiliated Lender Cap (after giving effect to any substantially simultaneous cancellations thereof), the assignment
of the relevant excess amount shall be null and void;
(v)
in connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the
Parent Borrower or any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans or
Additional Revolving Loans to fund such assignment and (B) no Event of Default exists at the time of acceptance of bids for the
Dutch Auction or the confirmation of such open market purchase, as applicable;
(vi)
by its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A)
the Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of
any Required Lender or other Lender vote (and the Term Loans held by such Affiliated Lender shall be deemed to be voted pro rata
along with the other Lenders that are not Affiliated
Lenders);
provided that (x) such Affiliated Lender shall have the right to vote (and the Term Loans held by such Affiliated Lender shall
not be so disregarded) with respect to any amendment, modification, waiver, consent or other action that requires the vote of all Lenders
or all Lenders directly and adversely affected thereby, as the case may be, and (y) no amendment, modification, waiver, consent or other
action shall (1) disproportionately affect such Affiliated Lender in its
capacity as a Lender as compared to other Lenders of the same Class that are not Affiliated Lenders or (2) deprive
any Affiliated Lender of its share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in each
case without the consent of such Affiliated Lender; and
(B)
such Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone)
or participate in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders to which
the Loan Parties or their representatives are not invited or (ii) receive any information or material prepared by the Administrative
Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information
or materials have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any
case, other than the right to receive notices of Borrowings, prepayments and other administrative notices in respect of its Initial Term
Loans or Additional Term Loans required to be delivered to Lenders pursuant to Article 2); and
(vii)
no Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public information
with respect to Holdings, the Parent Borrower and/or any subsidiary thereof and/or their respective securities in connection with any
assignment permitted by this Section 9.05(g).
Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this
Agreement in respect of its Initial Term Loans, Additional Term Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments
to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Initial Term Loans, Additional Term Loans, Revolving
Credit Commitments or Additional Revolving Credit Commitments (x) on a non-pro rata basis through Dutch Auctions or similar transactions
open to all applicable Lenders or (y) on a non-pro rata basis through open market purchases without the consent of the Administrative
Agent, in each case, notwithstanding the requirements set forth in subclauses (i)
through (vii) of this clause (g);
provided that the Initial Term Loans, Additional Term Loans and unused commitments and other Loans of all Debt Fund Affiliates
shall not account for more than 49.9% of the amounts included in determining whether the Required Lenders or Required Revolving Lenders
have (A) consented to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document
or any departure by any Loan Party therefrom or (B) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to any Loan Document. Any Initial Term Loans or Additional Term Loans acquired by any
Debt Fund Affiliate may (but shall not be required to) be contributed to the Parent Borrower or any of its subsidiaries or parent entities
for purposes of cancelling such Indebtedness and in exchange thereof such Debt Fund Affiliate may receive debt or equity securities of
such entity or a direct or indirect parent entity or subsidiary thereof that are otherwise permitted to be issued by such entity at such
time (it being understood that (x) any Initial Term Loans or Additional Term Loans so contributed shall, to the extent permitted by applicable
Requirements of Law, be retired and cancelled immediately upon contribution thereof and (y) any such contribution shall be treated as
a capital contribution that builds the Available Amount pursuant to clause (iii)
of the definition thereof by an amount equal to the fair market value (as determined by the Parent Borrower in good faith) of the
Initial Term
Loans or Additional
Term Loans so contributed; provided that if the fair market value of such Initial Term Loans or Additional Term Loans cannot be
determined by the Parent Borrower, the fair market value shall be deemed to be the purchase price of such Initial Term Loans or Additional
Term Loans paid by such Debt Fund Affiliate)); provided that upon any such cancellation, the aggregate outstanding principal amount
of the Initial Term Loans or Additional Term Loans shall be deemed reduced, as of the date of such contribution, by the full par value
of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled, and each principal
repayment installment with respect to the Initial Term Loans or Additional Term Loans pursuant to Section
2.10(a) shall be reduced pro rata by the full par value of the aggregate principal amount of Initial Term Loans or Additional
Term Loans so contributed and cancelled.
(h)
Notwithstanding anything to the contrary herein, at the election of the Parent Borrower, Revolving Loans and Revolving Credit
Commitments held by a Defaulting Lender may be assigned to an Affiliated Lender without the need for the consent of any other Person,
with the price of such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such
lower amount as agreed by the applicable Defaulting Lender and such Affiliated Lender; provided that Revolving Lenders that are
not Defaulting Lenders shall have the right to repurchase such assigned Revolving Loans and Revolving Credit Commitments from such Affiliated
Lender, with the price of such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and
(ii) such lower amount as agreed by such Revolving Lender and such Affiliated Lender; provided further that the provisions of
clause (g)(vi) above shall apply with respect to such Revolving Loans or Revolving Credit Commitments
acquired and held by an Affiliated Lender, other than an Affiliated Lender that is a Debt Fund Affiliate, in which case only the limitation
set forth in the final paragraph of Section 9.05(g) shall apply.
Section
9.06. Survival.
All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance
of any Letter of Credit regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative
Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect until the Termination Date. The provisions of Sections 2.15,
2.17, 9.03 and 9.13 and Article
8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment
of the Loans, the expiration or termination of the Letters of Credit and the Revolving Credit Commitment or any Additional Commitment,
the occurrence of the Termination Date or the termination of this Agreement or any provision hereof but in each case, subject to the
limitations set forth in this Agreement.
Section
9.07. Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and the Fee Letter constitute the entire agreement among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement
shall become effective when it has been executed by Holdings, each Borrower as of the Closing Date and the Administrative Agent and when
the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or
“.tif” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.
Section
9.08. Severability. To the extent permitted by applicable
Requirements of Law, any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall
not invalidate such provision in any other jurisdiction.
Section
9.09. Right
of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each Issuing Bank,
each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements of Law,
to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations
(in any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender to or for the credit or the account
of the Borrowers or any Loan Party against any of and all the Secured Obligations held by the Administrative Agent, such Issuing Bank
or such Lender, irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender shall have made any demand
under the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender
or Issuing Bank different than the branch or office holding such deposit or obligation on such Indebtedness. Any applicable Lender or
Issuing Bank shall promptly notify the Parent Borrower and the Administrative Agent of such set-off or application; provided that
any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section.
The rights of each Lender, each Issuing Bank and the Administrative Agent under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender, such Issuing Bank or the Administrative Agent may have.
Section
9.10. Governing
Law; Jurisdiction; Consent to Service of Process.
(a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN
DOCUMENTS), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “CLOSING DATE MATERIAL
ADVERSE EFFECT” AND THE DETERMINATION OF WHETHER A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED, (II) THE DETERMINATION OF
THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF MERGER SUB 1 OR
ITS APPLICABLE AFFILIATE HAS A RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE TO CONSUMMATE THE ACQUISITION
AND (III) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT
AND, IN ANY CASE, ANY CLAIM OR DISPUTE ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR ANY ASPECT THEREOF, SHALL IN EACH CASE
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(b)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF
ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM)
OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENT
AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH
NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT; PROVIDED THAT WITH RESPECT TO ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE ACQUISITION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY WHICH DOES
NOT INVOLVE ANY CLAIMS AGAINST THE ARRANGERS, THE ISSUING BANKS, THE LENDERS OR ANY INDEMNIFIED PERSON, THIS SENTENCE SHALL NOT OVERRIDE
ANY JURISDICTION PROVISION IN THE ACQUISITION AGREEMENT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT
BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS
BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE
AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH
THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d)
TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM
OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
REQUIREMENTS OF LAW.
Section
9.11. Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY)
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
Section
9.12. Headings.
Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement
and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section
9.13. Confidentiality. Each of the Administrative
Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender agrees to cause its SPC, if any) to maintain the confidentiality
of the Confidential Information (as defined below), except that Confidential Information may be disclosed (a) to its and its Affiliates’
directors, officers, managers, employees, independent auditors, or other experts and advisors, including accountants, legal counsel and
other advisors (collectively, the “Representatives”) on a confidential, “need to know” basis solely in
connection with the transactions contemplated hereby and who are informed of the confidential nature of the Confidential Information
and are or have been advised of their obligation to keep the Confidential Information of this type confidential; provided that
such Person shall be responsible for its Affiliates’ and their Representatives’ compliance with this paragraph; provided,
further, that unless the Parent Borrower otherwise consents, no such disclosure shall be made by the Administrative Agent, any
Issuing Bank, any Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate or Representative of the Administrative
Agent, any Issuing Bank, any Arranger, or any Lender that is a Disqualified Institution, (b) upon the demand or request of any regulatory
or governmental authority having jurisdiction over such Person or its Affiliates (in which case such Person shall, except with respect
to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory authority exercising examination
or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform the Parent Borrower promptly in advance
thereof and (ii) ensure that any information so disclosed is accorded confidential treatment), (c) to the extent compelled by legal process
in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative
proceeding or otherwise as required by applicable Requirements of Law (in which case such Person shall (i) to the extent permitted by
law, inform the Parent Borrower promptly in advance thereof, (ii) ensure that any such information so disclosed is accorded confidential
treatment and (iii) allow the Borrowers a reasonable opportunity to object to such disclosure in such proceeding), (d) to any other party
to this Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being
disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to
the Parent Borrower and the Administrative Agent, including as set forth in the Information Memorandum) in accordance with the standard
syndication process of the Arrangers or market standards for dissemination of the relevant type of information, which shall in any event
require “click through” or other affirmative action on the part of the recipient to access the Confidential Information and
acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or prospective Participant in, any of its rights or obligations under this Agreement, including any SPC (in each
case other than a Disqualified Institution), (ii) any pledgee referred to in Section 9.05, (iii) any actual
or prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar transactions under which payments are to be made by reference to any Borrower and its Obligations, (iv) any actual or
prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar derivative product to which any Loan Party is a party and (v) subject to the Parent Borrower’s prior approval
of the information to be disclosed (not to be unreasonably withheld or delayed), to Moody’s or S&P on a confidential basis
in connection with obtaining or maintaining ratings as required under Section 5.13, (f) with the prior
written consent of the Parent Borrower and (g) to the extent the Confidential Information becomes publicly available other than as a
result of a breach of this Section
by such Person,
its Affiliates or their respective Representatives. For purposes of this Section, “Confidential Information” means
all information relating to Holdings, the Parent Borrower and/or any of its subsidiaries and their respective businesses, the Transactions,
the Amendment No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 3 Transactions, the Amendment No. 8 Transactions
or the Amendment No. 9 Transactions (including any information obtained by the Administrative Agent, any Issuing Bank, any Lender or
any Arranger, or any of their respective Affiliates or Representatives, based on a review of the books and records relating to Holdings,
the Parent Borrower and/or any of its subsidiaries and their respective Affiliates from time to time, including prior to the date hereof)
other than any such information that is publicly available to the Administrative Agent or any Arranger, Issuing Bank, or Lender on a
non-confidential basis prior to disclosure by Holdings, the Parent Borrower or any of its subsidiaries. For the avoidance of doubt, in
no event shall any disclosure of any Confidential Information be made to Person that is a Disqualified Institution at the time of disclosure.
Section
9.14. No Fiduciary
Duty. Each of the Administrative Agent, the Arrangers, each Lender, each Issuing Bank and their respective Affiliates (collectively,
solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the
Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise
will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the
one hand, and such Loan Party, its respective stockholders or its respective affiliates, on the other. Each Loan Party acknowledges and
agrees that: (i) the transactions contemplated by the Loan Documents (including
the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Loan Parties, on the other, and (ii) in connection therewith
and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its
respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights
or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising
or will advise any Loan Party, its respective stockholders or its respective Affiliates on other matters) or any other obligation to
any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and
not as the agent or fiduciary of such Loan Party, its respective management, stockholders, creditors or any other Person. Each Loan Party
acknowledges and agrees that such Loan Party has consulted its own legal, tax and financial advisors to the extent it deemed appropriate
and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
Section
9.15. Several
Obligations. The respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender to make
any Loan, issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations
hereunder.
Section
9.16. USA PATRIOT
Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties that pursuant to the
requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information
includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance
with the USA PATRIOT Act.
Section
9.17. Disclosure.
Each Loan Party, each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative Agent and/or its Affiliates
from time to time may hold investments in, make other loans to or have other relationships with any of the Loan Parties and their respective
Affiliates.
Section
9.18. Appointment
for Perfection. Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose of perfecting Liens
for the benefit of the Administrative
Agent, the Issuing
Banks and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable Requirements
of Law can be perfected only by possession. If any Lender or Issuing Bank (other than the Administrative Agent) obtains possession of
any Collateral, such Lender or such Issuing Bank shall notify the Administrative Agent thereof; and, promptly upon the Administrative
Agent’s request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance
with the Administrative Agent’s instructions.
Section
9.19. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or Letter
of Credit, together with all fees, charges and other amounts which are treated as interest on such Loan or Letter of Credit under applicable
law (collectively, the “Applicable Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”)
which may be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding such Loan or Letter of Credit
in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan or Letter of Credit hereunder,
together with all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Applicable Charges that would have been payable in respect of such Loan or Letter of Credit but were not payable as a result
of the operation of this Section shall be cumulated and the interest and Applicable Charges payable to such Lender or Issuing Bank in
respect of other Loans or Letters of Credit or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such
Lender or Issuing Bank.
Section
9.20. Intercreditor
Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER AND ISSUING BANK HEREUNDER AGREES THAT IT WILL BE BOUND
BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE
AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL AGENT” AND ON BEHALF OF SUCH LENDER
OR ISSUING BANK. THE PROVISIONS OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS
OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR
AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER AND ISSUING BANK IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS
AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES
MAKES ANY REPRESENTATION TO ANY LENDER OR ISSUING BANK AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS UNDER THE SECOND LIEN CREDIT AGREEMENT TO EXTEND CREDIT
THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section
9.21. Conflicts.
Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding the Intercreditor Agreement),
in the event of any conflict or inconsistency between this Agreement and any other Loan Document (excluding the Intercreditor Agreement),
the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between the Intercreditor
Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control.
Section
9.22. Release
of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor
shall automatically be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon the consummation
of any permitted transaction
or series of related
transactions if as a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary (included by merger or dissolution)
or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions permitted hereunder; or (ii)
upon the occurrence of the Termination Date, (b) any Subsidiary Guarantor that qualifies as an “Excluded Subsidiary” shall
be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) by the Administrative Agent promptly
following the request therefor by the Parent Borrower and/or (c) the Person constituting Holdings immediately prior to the consummation
of a Holdings Reorganization Transaction whereby the existing “Holdings” is not intended to remain as such shall be automatically
released from its obligations hereunder (and its Loan Guaranty shall be automatically released) upon the consummation of such Holdings
Reorganization Transaction; provided, that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty
if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall
only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect to such release
and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Parent Borrower is deemed
to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired)
in an amount equal to the portion of the fair market value of the net assets of such Person attributable to the Parent Borrower’s
equity interest therein as estimated by the Parent Borrower in good faith and such Investment is permitted pursuant to Section
6.06 (other than Section 6.06(f)) at such time. In connection with any such release, the Administrative Agent shall, subject to receipt
of an officer’s certificate from the Parent Borrower certifying that such transaction and release are permitted hereunder, promptly
execute and deliver to the relevant Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably
request to evidence termination or release. Any execution and delivery of documents pursuant to the preceding sentence of this Section
9.22 shall be without recourse to or warranty by the Administrative Agent.
Section
9.23. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any
other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and
conversion powers of an Resolution Authority and each party hereto agrees and consents to, and acknowledges and agrees to be bound by:
(a)
the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising
hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)
the effects of any Bail-In Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial
Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares
or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement
or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any Resolution
Authority.
Section
9.24. Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge
Agreements or any other
agreement or instrument
that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties
acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal
Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the
provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the
laws of the State of New York and/or of the United States or any other state of the United States):
(a)
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to
a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported
QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under
the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in
property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate
of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that
might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported
QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the
foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event
affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b)
As used in this Section 9.24, the following terms have the following meanings:
“BHC
Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with,
12 U.S.C. 1841(k)) of such party.
“Covered
Entity” means any of the following:
(i)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b);
(ii)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or
(iii)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
[Signature Pages
Follow]
[Signature
pages intentionally omitted]
Signature
Page to First Lien Credit Agreement
ANNEX B
SCHEDULE 1.01(a)
COMMITMENT SCHEDULE
Revolving Credit Commitments
| Lender |
Amendment No. 6 Replacement and
Incremental Revolving Commitment |
|
JPMorgan Chase Bank, N.A.
|
$75,000,000 |
| Wells Fargo Bank, N.A |
$75,000,000 |
|
Credit Suisse AG, Cayman Islands
Branch
|
$35,000,000 |
| Deutsche Bank AG New York Branch |
$50,000,000 |
| Capital One, National Association |
$50,000,000 |
| Truist Bank |
$50,000,000 |
| Total |
$335,000,000 |
v3.24.2.u1
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Bowlero (NYSE:BOWL)
과거 데이터 주식 차트
부터 11월(11) 2024 으로 12월(12) 2024
Bowlero (NYSE:BOWL)
과거 데이터 주식 차트
부터 12월(12) 2023 으로 12월(12) 2024
